FC: CDT says that proposed "anti-spam" laws go too far, harm speech

[Declan McCullagh <declan () well com>]

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CDT POLICY POST Volume 7, Number 4, June 1, 2001

A BRIEFING ON PUBLIC POLICY ISSUES AFFECTING CIVIL LIBERTIES ONLINE
from
THE CENTER FOR DEMOCRACY AND TECHNOLOGY

CONTENTS:
(1) LABELING MANDATES IN ANTI-SPAM LEGISLATION THREATEN FREE SPEECH.
(2) SPAM: A PROBLEM REQUIRING BALANCED SOLUTIONS THAT RESPECT FREE
SPEECH
(3) MANDATORY CONTENT LABELING VIOLATES FIRST AMENDMENT
(4) ISP TERMS OF SERVICE SHOULD NOT HAVE THE FORCE OF LAW


------------------------------------------------------------------------

(1) LABELING MANDATES IN ANTI-SPAM LEGISLATION THREATEN FREE SPEECH.

Legislation currently under consideration in Congress to curtail spam - or
unsolicited commercial electronic mail (UCE) - contains provisions that 
threaten free
speech by, among other things, requiring labeling of UCE containing lawful 
"adult"
material.

H.R. 718, introduced by Rep. Heather Wilson (R-N.M.), has gone through several
versions. On Thursday, May 24, 2001, the House Judiciary Committee approved the
bill. Key provisions of the bill make it a federal crime to intentionally 
transmit 10 or
more unsolicited commercial email messages in a protected computer in the US
knowing that the messages' header information "is materially false or 
misleading
as to the identity of the person initiating the transmission."

While CDT has supported similar anti-spoofing provisions in the Senate, 
penalties
provided for in the House bill are troubling. A first offense under this 
section is
punishable by a fine and subsequent offenses may be punished by imprisonment
for up to one year. In addition, ISPs could seek damages, with the total 
liability for
any one misleading spam incident capped at $1 million.

More worrisome is an amendment adopted by the Judiciary Committee at the
behest of Rep. Melissa Hart (R-PA) requiring that UCE containing adult 
content carry
a header labeling it as such. Such a provision creates the threat of forced 
speech
and stigmatizes potentially beneficial and lawful, though adult, speech. It 
also
gives the Justice Department broad discretion to determine what is 
acceptable bulk
mail and what is not.

The bill was previously reported by the House Commerce Committee with 
additional
and controversial provisions making it illegal to send spam in violation of 
the terms
of service of the recipient's ISP. See (4) below.

CDT believes that both the mandatory labeling provision and penalties in the
Judiciary bill and the ISP terms of service provision in the Commerce 
Committee bill
are unnecessary, out of proportion to the UCE problem.

H.R. 718 as introduced and reported by the Commerce Committee is available
through CDT's Legislation page:
http://www.cdt.org/legislation/107th/junkmail/.


------------------------------------------------------------------------

(2) SPAM: A PROBLEM REQUIRING BALANCED SOLUTIONS THAT RESPECT FREE
SPEECH

The efficiency of email - perhaps the Internet's most widely-used 
application - has
brought with it some problems. Because a sender can almost effortlessly 
transmit a
message to thousands, or even millions of recipients, the sending of UCE to 
vast
email address lists has proven to be irresistible to some businesses.

However, unlike postal mail, the full cost of spam is not borne by the sender.
Instead, the cost is shifted to intermediaries, such as Internet service 
providers
(ISPs), and to recipients. While each individual email message only utilizes a
minimal amount of Internet resources, when multiplied by the millions, such 
bulk
messages can easily clog data pipelines and force both ISPs and recipients to
spend time and resources to deal with what are frequently unwanted messages.
Compounding the issue and raising the political heat is the use of UCE by
purveyors of adult material.

In 1998, CDT coordinated an ad hoc working group on UCE, which submitted a
report to the FTC concluding that there were ways to respond to UCE that were
consistent with the First Amendment. The report found that a response to UCE
should combine -

*	Better technical tools and public policies that allow individuals to 
indicate their
   desire to receive or not receive UCE and exercise greater control over 
incoming
   email messages.
*	Technical measures and public policies that prevent and/or prohibit the 
use of
   fraudulent headers to send unsolicited commercial email messages.
*       Self-regulatory efforts to create opt-out or opt-in programs.
*       Increased enforcement efforts, under existing laws, against email fraud.

The anti-spoofing provisions of HR 718, and similar provisions in the Senate
legislation, are consistent with these principles. Mandatory labeling and
federalization of ISP terms of service tip the balance too far and threaten 
First
Amendment values.

The working group report on UCE is at
http://www.cdt.org/spam/.


------------------------------------------------------------------------

(3) MANDATORY CONTENT LABELING VIOLATES FIRST AMENDMENT

The House Judiciary bill as amended would mandate labeling of UCE that contains
adult-oriented material.

This amendment, while targeted at pornography, would set a terrible 
precedent. It
is fundamentally distinct from the requirement prohibiting false header 
information,
which applies to all commercial email, regardless of content and which is 
subject to
objective determination. In contrast, mandatory content labeling is a form 
of forced
speech, which is as offensive to the Constitution as forced silence. And 
deciding
when something is properly labeled or not involves the government directly 
in the
type of picking and choosing among otherwise legal content that is also
incompatible with the First Amendment

The amendment proposed by Congresswoman Hart and passed by the Judiciary
Committee would require that senders of UCE label all email containing
adult-oriented material. The amendment employs a standard provided many years
ago for the Post Office in Title 39 of the United States Code, Section 
3010, and
"Mailing of sexually oriented advertisements." The standard for "sexually 
oriented
material set forth in the statute is "any advertisement that depicts, in 
actual or
simulated form, or explicitly describes, in a predominantly sexual context, 
human
genitalia, any act of natural or unnatural sexual intercourse, any act of 
sadism or
masochism, or any other erotic subject directly related to the foregoing."

While it may be appropriate to apply such a requirement to the paper mail 
system,
long operated as a government monopoly and still highly regulated in many
respects, such a standard is not transferable to Internet email. The 
Internet is
entitled to the highest form of First Amendment protection, according to 
the United
States Supreme Court in the Reno v. ACLU decision of 1997. Moreover, the
anti-spoofing provisions of the legislation will go a long way toward 
effectively
eliminating the kind of UCE this provision attempts to address.

Finally, it is crucial to note that this debate concerns only legal 
material. Distribution
of child pornography and obscenity are already per se illegal, online as 
well as off,
in which case labeling is not the issue.


------------------------------------------------------------------------

(4) ISP TERMS OF SERVICE SHOULD NOT HAVE THE FORCE OF LAW

H.R. 718 as reported by the Commerce Committee also included a provision, 
not in
the Judiciary Committee bill, that would make it illegal to send UCE that 
"uses the
equipment of a provider of Internet access service," if such provider has 
in effect an
anti-spam policy and has requested the sender not to use the equipment of the
provider for the transmission of any unsolicited commercial electronic mail 
message.

In other words, sending email in violation of the policy of the recipient's 
ISP would
violate federal law. Granting ISP terms of service the force of law in this 
way could
create negative consequences for free expression and impose burdens on due
process.

*	While ISPs should be free to create their own terms of service in the 
marketplace,
   giving the force of law to ISP terms of service effectively allows 
commercial
   entities to create federal law without the scrutiny of the legislative 
process. For
   example, ISPs could decide not to accept certain labels; this provision 
would
   make doing so a federal crime.
*	Because there is no oversight, ISPs will have latitude to set terms of 
service may
   include broad restrictions on UCE that impede speech and expression, 
and those
   terms of service will have the force of law.
*	Giving force of law to ISP terms of service also raises issues of due 
process.
   Users and businesses would be required to know and adhere to the terms of
   service of each ISP that are subject to change without notice. In 
practical terms,
   when users send an email, they have no idea whether it violates their 
ISPs terms
   of service - in some cases users are not even aware of the identity of 
their ISP.

For more information about free speech and spam see:
http://www.cdt.org/speech/spam/.


------------------------------------------------------------------------

Detailed information about online civil liberties issues may be found at
http://www.cdt.org/.

This document may be redistributed freely in full or linked to
http://www.cdt.org/publications/pp_7.04.shtml.




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