Torrent of 'Junk E-Mail' Advertising Pitches Prompts Congress To Consider Broad Ban

By Richard T. Kaplar

By jamming electronic mailboxes with unsolicited messages by the millions, commercial e-mailers have been waving the biggest red flag on the Internet -- and the congressional bulls are charging.

One representative and two senators have introduced bills that would ban or restrict unsolicited e-mail, or "spam." Free speech advocates are nervous because cyberspeech is a fragile freedom whose boundaries are still being defined. Commercial speech advocates are especially concerned because "junk e-mail" consists largely of advertising and marketing offers. A ban on commercial e-mail could set a precedent that bodes ill for advertising rights in all media and for cyberspeech in general.

The most restrictive measure has been introduced by Rep. Christopher H. Smith (R-N.J.). Dubbed the "Netizens Protection Act of 1997," the bill would prohibit the electronic transmission of unsolicited advertisements where there is no "preexisting and ongoing business or personal relationship" unless the recipient grants permission.

Allowable advertising would have to contain the name and return e-mail address of the sender, and the date and time the message was sent. The Smith bill would amend the Telephone Consumer Protection Act of 1991 which banned unsolicited junk faxes. Extending the ban to junk e-mail is based on the same rationale: that consumers should not have to bear the financial burden of receiving unwanted advertising.

"I believe in the First Amendment as much as anyone else," Smith said, but called unsolicited advertising "an egregious breach of consumer and individual rights."

Smith's bill is backed by the Coalition Against Unsolicited Commercial E-Mail (CAUCE), a group of Internet activists and system administrators.

A Smith aide said the bill has been endorsed by a number of newspapers including the Seattle Times, Sacramento Bee, and USA Today. In the Senate, a bill by Sen. Frank Murkowski (R-Alaska) would mandate an "advertisement" label on commercial e-mail and would require clear identification of the sender.

Another bill by Sen. Robert Torricelli (D-N.J.) would require sender identification on all mass e-mailings (not just advertising) but would not require labeling. Widespread dissemination of political and religious speech would fall under this bill. The measure would also prohibit the "harvesting" of names from service providers like America Online, whose e-mail delivery time has been slowed by the deluge of spam.

"On some days, junk e-mail accounts for up to 30 percent of our e-mail volume," said William W. Burrington, America Online's associate general counsel and director of law and public policy. "It's ruining our system," Burrington said, but cautioned that a legislative solution may not be appropriate. Others share that view.

"We're not sure legislation is needed right now," said Jerry Cerasale, senior vice president of government affairs for the Direct Marketing Association. DMA, which views the Torricelli bill as the best alternative, sees First Amendment problems with Murkowski's speech labeling and opposes Smith's outright ban. Calling the Internet a "global public forum," Cerasale noted that a U.S. restriction on cyberspeech would be "a clear signal to other countries that it's okay to restrict Internet speech."

Deirdre Mulligan, staff counsel for the Center for Democracy and Technology, agreed that Murkowski's labeling requirement may pose constitutional problems -- but said Smith's ban would be the "most problematic" option.

"It's a draconian first step after the Supreme Court ruled that the Internet should be a First Amendment-friendly medium," Mulligan said.

Neither the House nor Senate has held hearings on any of the bills. No action is expected before next spring, in part because Congress is waiting for an ad hoc working group to release its findings.

The Federal Trade Commission has jumped on the "spam wagon" as well. Last June the FTC held a four-day "public workshop" on consumer electronic privacy issues including junk e-mail.

Spam cuts two ways at the Commission: as a consumer privacy issue and frequently as a matter of unfair and deceptive advertising. E-mail pitches for fraudulent "get-rich-quick" schemes, for example, have caught the FTC's attention. (False and misleading advertising is not entitled to First Amendment protection.)

As an outgrowth of the workshop, commercial e-mailers, technology experts, service providers, and privacy advocates formed an ad hoc working group and agreed to report back to the FTC in six months with a "voluntary response" to consumer and industry concerns.

That group, coordinated by the Center for Democracy and Technology in Washington, held four meetings and now expects to issue its recommendations by early spring, according to CDT's Mullligan.

The group's task is formidable because unsolicited e-mail has unleashed a horde of competing interests: the right of advertisers to engage in on-line commercial speech; consumer privacy and the right to refuse information; who shall bear the cost of e-mail advertising; the line between advertising and other types of speech; and, ultimately, who should have responsibility for regulating on-line advertising and other forms of cyberspeech: the government, users, or no one.

Commercial speech advocates stress one point: Unsolicited e-mail isn't just a privacy issue or a systems problem that can be solved with a technical fix. It's a speech issue that has First Amendment implications not only for on-line advertising, but potentially for other types of speech in all media.