Groups seek federal action on spam

In a 14-page set of proposed rules that already has drawn fire as overly regulatory, the groups suggest that the FTC outlaw commercial e-mail that misrepresents the content of the message or fails to provide a way to unsubscribe from the mailing list.

"Spam is threatening the value of the Internet," said Samuel Simon, chairman of the Telecommunications Research and Action Center (TRAC). "We believe there is regulatory authority for the Federal Trade Commission to act and do something. It's not perfect, but if the rule we ask for is enacted, spam will be reduced significantly."

Wednesday's proposal, also backed by the National Consumers League and Consumer Action, comes as concerns about spam grow more and more acute. Corporate networks are becoming so clogged by e-mail pitches for pornography, moneymaking schemes and health products that spam could make up the majority of message traffic on the Internet by the end of this year.

Some legal experts, however, caution that because the proposed rules would regulate online communications more severely than offline advertisements, the courts would toss the regulations out as unacceptable. The Direct Marketing Association opposes the suggested rules as overly intrusive, and the American Civil Liberties Union says the rules would be unconstitutional if adopted by the FTC.

But Simon asserts that the FTC has sufficient authority under an existing law called the Federal Trade Commission Act, which prohibits "unfair or deceptive acts," and says the FTC may bring suit to punish them. That means Congress would not need to enact any new laws, which seems unlikely in the month remaining before a scheduled fall adjournment date.

TRAC's proposal would prohibit a commercial e-mail message if it ran afoul of any of five rules. It would ban commercial mailers from misrepresenting the sender's identity; misrepresenting the content of the message; failing to "provide reliable contact information"; not offering a way to unsubscribe; or contacting someone who already had unsubscribed.

The FTC has successfully sued spammers before, over extreme cases of deceptive bulk e-mail. But the commission has never said it possessed the power to regulate all commercial e-mail without explicit authorization from Congress.

In a statement on Wednesday morning, the FTC said it "is concerned about the proliferation of spam affecting consumers, and we look forward to reviewing the petition. In every spam proposal we have seen, vigorous law enforcement is key. We have brought numerous cases against deceptive and misleading spam practices, and that's exactly what we'll continue to do."

Political, legal obstacles
Probably the most daunting obstacle the proposal faces is not political but legal: the First Amendment, which prohibits most government restrictions on free expression.

"I don't doubt that (FTC Chairman Tim Muris), after seeking the advice of counsel, will see the problems of proceeding without sufficient First Amendment sensitivities," said Eric Freedman, who teaches First Amendment law at Hofstra University. "If their final rule did not include it, they would surely be successfully sued because it would have such a chilling effect."

Freedman said the proposal does not define what is commercial e-mail, which would be regulated by the FTC, and what would be free from government oversight. "Suppose the Democratic National Committee sends you a fundraising pitch: 'Unless you send us $100 dollars immediately, a bunch of reactionaries will get into office and allow old people to die for lack of prescription medicine.' So what now?" Freedman said. "The FTC sues them for fraud because a bunch of old people won't die? That's ridiculous."

Marv Johnson, legislative counsel for the ACLU, said the groups' proposal would dramatically rewrite legal prohibitions against fraud by removing the requirement to deceive. One section would ban commercial e-mail that "misrepresents the subject or content" of the message.

"If you're going to have the FTC start regulating whether it's a truthful tag line, then the FTC is going to be involved in a quagmire of trying to determine whether something is truthful or not," Johnson said. "Is 'Lose 10 pounds in a week' a truthful tag line? Maybe, maybe not. It may not be for everyone. By whose standards are we going to determine whether this is a truthful advertisement?"

The Direct Marketing Association opposes the suggested regulations. "Putting aside the legal challenges that might come out of it, the Internet is a borderless medium," said DMA Vice President Jim Conway. "Self-regulation is the way to go in terms of preserving First Amendment rights and, at the same time, making sure that frauds are not perpetrated."

Conway said the DMA already advises its members to follow a code of conduct. "A lot of what they're proposing is what we're already espousing to our membership," he said. "But you do have some commercial speech concerns, and you have government coming into what is a new and pristine medium, the Internet."

Junk fax equals junk e-mail?
The three consumer groups, which announced the proposal at a press conference Wednesday, dismiss First Amendment concerns raised by opponents.

"I disagree," TRAC's Simon said. "There is no First Amendment right to lie, cheat or steal. There is no First Amendment right to send commercial e-mail to people that doesn't have these items in it. I'm more than comfortable that this country's free speech tradition can be maintained with this rule in place."

Simon said another component of their effort is an online project to compile spam horror stories. "We think it's a little more sophisticated than the average petition," he said. "It's using the Internet in a better way. Anyone can generate tens of thousands of e-mails. These will be strong documented individual experiences that will be given credibility by the agency."

The petition compares unsolicited commercial e-mail (UCE) to unsolicited faxes, which are prohibited by a 1991 federal law called the Telephone Consumer Protection Act (TCPA). In April, however, a federal judge in Missouri ruled that the TCPA was unconstitutional, breaking with an earlier appeals court argument that upheld the law.

"Because the same type of nuisance and invasion of privacy is incurred by consumers who own e-mail accounts and receive deceptive UCE, there is a need for its regulation," the petition says. "For both faxes and e-mails, consumers bear the cost of the time it takes to review and dispose of unwanted messages. There is also the cost of the time the phone is engaged to receive a fax which is a direct parallel to the cost of the time a phone is engaged if a subscriber uses a dial-up method of e-mail and has to delete a lot of UCE."

Eugene Volokh, a UCLA professor who has written a casebook on First Amendment law, said the FTC probably has the power to enforce opt-out rules. "I think the government is entitled to create an opt-out requirement," Volokh said.

Volokh said he is skeptical of the groups' proposal that all commercial e-mail provide reliable contact information. "I'm not sure that speech that fails to provide reliable e-contact info is constitutionally unprotected just because of that," he said. "On the other hand, if it doesn't provide reliable contact info, it may not provide a reliable opt-out mechanism."

Because the FTC's jurisdiction ends at the U.S. border, the petition does not address the growing problem of spam originating from overseas.

"That's a question," Simon said. "There are a couple of levels. One is that if we can get these rules in place and implemented, a number of nations will see this as a model and enact it themselves."

Simon said that eventually the U.S. government could target "those in this country facilitating it," an apparent reference to Internet backbone providers. He declined to elaborate. "Let's cross that bridge when we get there," he said.

Embarrassing glitches
In an ironic twist, the Web site the three groups created to publicize their campaign against unsolicited e-mail suffered from programming errors that prohibited visitors from opting out of the campaign's mailing lists.

Banthespam.com requests personal information, including an e-mail address, from people who have spam horror stories to report. The site reassures contributors that "you will not get e-mail updates from us unless you request them."

But even if visitors chose not to be added to mailing lists, the site responds: "Thank you for agreeing to receive more information."

The problem existed on Banthespam.com as of late Wednesday. The Associated Press reported on a similar glitch earlier in the day, which TRAC said only existed "for a short period of time" before it was corrected.

TRAC did not immediately respond to a request for comment.