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ACLU on spam
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Date: Tue, 2 Sep 1997 15:51:59 GMT From: "ACLU Cyber-Liberties Update Owner"@newmedium.com Subject: Anti-Spam Bills in Congress
Source - ACLU Cyber-Liberties Update, Tuesday, September 2, 1997
Unsolicited e-mail advertisement, or "spam," has few fans on the net. Court battles have been waged between service providers, such as AOL and Compuserve, and spam advertisers, including Cyber Promotions, over whether the thousands of messages sent to user e-mails can be blocked. Congress and several state legislatures have also stepped into the debate and have introduced some bills fraught with First Amendment problems because they ban commercial speech altogether or are content specific.
Traditionally, commercial speech restrictions on telemarketing calls and unsolicited fax advertisements have passed First Amendment challenges but direct mail and door-to-door solicitations enjoy much greater protection. Given the Supreme Court decision in ACLU v. Reno, on-line messages should receive the same First Amendment protection given traditional print media, which includes commercial mailings. Thus, while netizens may laud efforts to curb spam, it is unclear whether some of the unsolicited commercial e-mail bills can pass constitutional muster.
Even more troubling are the state spam bills which create
different rules for each state that advertisers will have to
follow. Under some state bills, if a spam message is sent or made
available to a resident in one state, it could confer jurisdiction
over the sender and could subject them to liability if they are in
violation of local law. A federal judge recently ruled that state
control or regulation of Internet communications violates the
Commerce Clause of the Constitution. In the decision in ALA v.
Pataki, which involved a challenge by the ACLU to a New York
Internet decency law, federal district Judge Loretta Preska
declared that states are prohibited from regulating an interstate
communication which merely passes through their borders. Judge
Preska warned of the extreme danger that state regulation would
pose to the Internet, rejecting the state's argument that the
statute would even be effective in preventing so-called
"indecency" from reaching minors. Hence, state spam bills will
probably not withstand constitutional challenges.The decision in
ALA v. Pataki is available at
Below is a synopsis of the federal bills and the first state
enacted law on spam from Nevada. The ACLU objected to an earlier,
even broader version of the Nevada law before its enactment and is
considering participating in a challenge to the law. The Nevada
law, as enacted contains broad definitions of e-mail that may
include advertisements on web sites and other on-line forums. Full
text of the federal bills is available at
Netizens Protection Act of 1997, Introduced May 22,1997 (H.R. 1748):
Sponsored by Rep. Chris Smith (R-N.J.) would amend the Telephone Consumer Protection Act of 1991, ("TCPA") which regulates telemarketing and junk-faxes to include unsolicited e-mail advertisements. The bill would ban unsolicited e-mail and only permit the sending of commercial messages where there is a pre-existing relationship between the sender and recipient, or when the recipient has requested the information. The bill provides for hefty penalties for violations.
Unsolicited Commercial Electronic Mail Choice Act of 1997, (S. 771):
Sponsored by Sen. Frank Murkowski (R-AL) the bill would require senders to label content of a commercial e-mail message as an "advertisement" and to honor recipient "opt-out" requests within 48 hours, and put the burden of blocking spam on ISPs. Failure by ISPs to filter out messages would result in liability and steep penalties for providers, not spammers.
Electronic Mailbox Protection Act of 1997, introduced June 11,1997 (S.875):
Sponsored by Sen. Robert Torricelli (D-NJ) the bill would restrict the use of false e-mail addresses or domain names to avoid filtering by commercial advertisers. Spammers would also be required to honor recipient "opt-out" requests, and violators would be hit with civil penalties up to $5,000.
Data Privacy Act of 1997, introduced July 31, 1997 (H.R. 2368):
Sponsored by Rep. Tauzin the bill would create an industry working group to draft voluntary guidelines with incentives for advertisers who adopt them to: limit the collection and use, for commercial marketing purposes, of personally identifiable information obtained from individuals through any interactive computer service; require unsolicited e-mail advertisers to identify the sender, including a valid reply address; disclose when such information is gathered; provide a consumer opt-out provision; limit the display of social security numbers and prohibit the commercial marketing and use of medical information.
Nevada Anti-Spam Law: Senate Bill 13 , enacted July 8, 1997 and goes into effect on July 1, 1998:
Under the law, transmitting commercial advertisements in the form of e-mail may subject the sender to civil fines and provides that a recipient may enjoin the sender from such future conduct and may receive restitution. The law defines an advertisement as material that advertises for commercial purposes the availability or the quality of real property, goods or services; or is designed or intended to solicit a person to purchase real property, goods or services. The law also imposes liability upon Internet Service Providers since it applies to any party that causes to be transmitted commercial mail.
The exception to the law permits sending commercial e-mail where: (a) The person has a preexisting business or personal relationship with the recipient; (b) The recipient has expressly consented to receive the item or (c) The advertisement is readily identifiable as promotional, or contains a statement providing that it is an advertisement, and clearly and conspicuously provides: (1) The legal name, complete street address and electronic mail address of the person transmitting the electronic mail; and (2) A notice that the recipient may decline to receive additional electronic mail that includes an advertisement from the person transmitting the electronic mail and the procedures for declining such electronic mail.
The full text of the Nevada law is available at
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