Spam bill raises free-speech flags

A California bill that aims to regulate bulk email is rekindling free-speech concerns familiar to those engaged in spam debates.

4 min read
California lawmaker Debra Bowen's plan to deter bulk emailers and adult sites from pushing sales pitches to unsuspecting Net users seems simple: Make spammers use labels so that email providers or surfers can screen the messages.

But Bowen's proposal, which was sent to Gov. Pete Wilson last week, rekindles free speech concerns that have been dragged into the spam debate before.

If passed, senders of unsolicited bulk email--who reside in the state or send messages to California residents--would have to put "ADV:" before the subject line of any email message that advertises "material for the lease, sale, rental, gift offer, or other disposition of any realty, goods, services, or extension of credit." The requirement would not apply to spammers who have an existing relationship with the recipient.

Adult-oriented spam would have to be labeled "ADV:ADLT" if the message contained any material that is intended for users 18 years of age or older.

District attorneys would be able to seek up to $500 per email message for violations or six months in jail if the statute is adopted. Wilson has until September 30 to veto or sign Bowen's bill, as well as legislation to allow any email provider to sue spammers to recover losses caused by network clogs or crashes.

Even though spam infuriates many Net users, civil liberties advocates say there are bigger constitutional issues to consider that could trickle down to other Net speech if Bowen's bill is passed.

"It is an attempt by the state to make some hard and fast legal requirements for Internet-based speech," said Paul Russinoff, state policy counsel for online industry group the Internet Alliance. "There is going to be some serious constitutional problems with that."

Some argue that the provision will not effectively keep spam form clogging online users' email accounts, although it will put a law on the books that controls some online speech.

"This doesn't truly limit things to commercial emails," said Ari Schwartz, a policy analyst for the Center for Democracy and Technology.

"If someone is putting together a rally and offers [via email] to drive you to the event, that could be defined as a service," he added. "You're starting to talk about political action. It depends on how it is interpreted."

Bowen argues that telemarketers have to identify themselves--and so should unsolicited bulk emailers. Her bill also requires spammers, like senders of unsolicited faxes, to set up a toll-free telephone number or working return email address so that recipients can request to be taken off a spam list.

"The label is key, because it makes it easy for people who aren't technologically savvy to delete spam without opening it," Bowen said in a statement. "Without a label on spam, software filers are useless because spammers use misleading subject lines and misspell words to slip past the filters."

A similar proposal was floated in Congress, but has now been abandoned. Free speech advocates argue that the Federal Trade Commission already has the authority to go after those who send false and deceptive email messages--and it has begun to do so.

However, Bowen also said Net users should have some protection from receiving pornographic materials via spam.

Still, civil liberties groups counter that bulk emailers would have to apply the "ADV: ADLT" label to all material "that may only be viewed, purchased, rented, leased, or held in possession by an individual 18 years of age and older"--which is much broader than just sexually explicit content.

"It is not as if commercial speech doesn't have any protection," said David Sobel, legal counsel for the Electronic Privacy Information Center.

"If a membership organization wants to send email out to a mailing list, does that qualify [as spam]?" he added. "It falls into the area of compelled speech, which is always problematic from a First Amendment perspective."

Antispam groups don't think the bill is a cure-all, either.

"It pushes us toward a world where people are bombarded by so-called one-time pitches from thousands of different fly-by-nighters," said Jason Catlett, founder of Junkbusters. "Almost nobody wants spam, so why should everyone have to tell each new spammer that starts up that they don't?"

Supporters of the California legislation counter that it can do the job without stifling free speech.

"It would not apply to political speech, or other messages from non-business entities," said Kaye Caldwell, president of the Silicon Valley Software Industry Coalition.

"This bill amends existing unsolicited fax legislation to apply to email, so the parts of it that are already in existence shouldn't really be controversial," she added. "Obviously in such a new area, we would expect some constitutional challenges, but we need bills that are carefully crafted to meet constitutional scrutiny, [and this] is such a bill."