Antispam Crusaders Call for New Laws

WASHINGTON -- Antispam crusaders plan to use an appeals court ruling against unsolicited faxes last week to push harder for a U.S. federal law against unsolicited e-mail.

In the ruling Friday, the U.S. Eighth Circuit Court of Appeals upheld a 1991 federal law against "junk" faxes, saying the law did not violate the fax-senders' right to free speech under the First Amendment to the U.S. Constitution. The three-judge panel overturned a lower court ruling from March 2002 that dismissed a lawsuit filed by Missouri and the U.S. government against American Blast Fax and Fax.com.

The appeals court ruling is available online.

Fax.com did not return an e-mail seeking comment in the case, and no one answered the phone at the Dallas listing for American Blast Fax, which some news reports say is no longer in business.

The appeals court ruled that the junk fax law was not too broadly worded and that the government had enough of an interest in protecting owners of fax machines to justify the law. "There is substantial government interest in protecting the public from the cost shifting and interference caused by unwanted fax advertisements," the court wrote.

With the cost of unsolicited e-mail many times the magnitude of unsolicited faxes, Congress could make the same arguments about spam, said Ray Everett-Church, counsel to the Coalition Against Unsolicited Commercial Email. The First Amendment argument against the junk fax section of the Telephone Consumer Protection Act of 1991, rejected by the appeals court, is the same one used against a national antispam law, he noted.

The appeals court ruling "bolsters the argument that a junk e-mail law would withstand scrutiny," Everett-Church said. "The junk e-mail problem cries out even louder for a solution."

The U.S. Federal Trade Commission is hosting a series of hearings on spam in Washington from April 30 to May 2, noted Chris Hoofnagle, deputy counsel at the Electronic Privacy Information Center.

Hoofnagle is encouraged that those hearings, plus this court decision, may open the door for a federal antispam law. More information on the FTC hearings is at FTC.gov.

"This decision gives ... more assurances to legislators that tough [antispam] legislation won't just be invalidated by the courts," Hoofnagle added. "There is a verifiable and measurable cost created by spam."

The court decision provides new fodder for privacy advocates in their struggle against unwanted intrusions, Hoofnagle said. "There is a very effective PR machine promoting the idea that the First Amendment invalidates all privacy laws," he said.

But Paula Bruening, staff counsel for free-speech advocate, the Center for Democracy and Technology, said the privacy advocates may be reading too much into the junk fax ruling. "I think you can't necessarily apply a law in one medium to another medium," she said.

The CDT has argued that some spam laws may be justified, but Congress would have to balance spam laws with First Amendment rights. "I think we're going to have to look carefully at how spam e-mail works," Bruening said. "Legislators are going to have to carefully consider the impact on the First Amendment to make sure the First Amendment isn't compromised."

Cindy Cohn, legal director of the Electronic Frontier Foundation, agreed with Bruening that regulating e-mail spam may not be as easy legally as regulating junk faxes. The appeals court case dealt with the costs associated with tying up fax machines and using up the paper and ink on receiving fax machines, she said, while measuring the costs of e-mail spam may be more of an art than a science.

The EFF, which has opposed many state attempts at antispam laws because they were "ham-fisted," may not be opposed to the right kind of federal law if it doesn't curtail legitimate free speech, Cohn said. But because so much spam comes from outside the U.S., an antispam law may not help reduce the amount of unsolicited e-mail, she added.

"If we're going to curtail speech ... I'd at least want it to work," Cohn said of a federal antispam law.

Senator Conrad Burns (R-Montana) introduced an antispam bill in 2001, called Controlling the Assault of Non-Solicited Pornography and Marketing Act, but it wasn't brought to the Senate floor for a vote. Burns issued a press release in January accusing spam of "handicapping the American economy," and calling on Congress to pass an antispam bill this year. He cited a study by Ferris Research saying spam costs U.S. businesses $9 billion a year.