Legislation To Can Spam Would Kill Free Speech

If Congress moves to adopt any one of several pending bills to quash unsolicited commercial e-mail – a.k.a. "spam" – it could trample free speech and pave the way for "opt-in" privacy legislation, according to a recently released study.

"Even if corporate free speech is the initial target, media speech could easily end up in the crosshairs," wrote Clyde Wayne Crews, director of technology policy for The Cato Institute, a libertarian think tank based in Washington, D.C. "Spam legislation amounts to a stealth privacy bill, and in such an environment, regulation could lead to better-disguised spam, more annoying than today’s version."

The study takes aim at a pair of House bills designed to curb the use of spam: one sponsored by Rep. Heather Wilson, R-N.M., and another measure sponsored by Rep. Bob Goodlatte, R-Va.

As written, the Wilson bill would have provided a private right of action to allow consumers and Internet service providers to recoup the financial costs incurred from spam. That language was stripped from the bill in House Judiciary Committee markup last month, however, and the Senate is considering a similarly pared-down measure.

The result is a bill similar to Goodlatte’s proposal, which would make it illegal to send commercial e-mail with false return address information, a ploy often used by spammers to avoid detection by their Internet service provider.

While it is now up to the House leadership to reconcile the two bills and to decide how soon the bill moves to the floor for a vote, support for passing such legislation has dropped off considerably since this time last year.

The Cato study argues that is because marketing companies already are moving toward permission-based marketing, due in part to widespread peer pressure in the online advertising industry.

"Practitioners hope to make e-mail less intrusive and more respectable – in other words, more welcome," Crews wrote. "What the market needs now is time to adjust to these new realities, not legislation that might thwart them."

The study decries what it terms "unanswered questions about the definition of spam" in the Wilson bill, noting that the measure includes such "loose" definitions as messages that "primarily advertise or invite the recipient to view content on a Web site that is operated for commercial purpose."

Given such a restrictive definition, Crews said, even electronic newsletters from media services, which sometimes contain advertisements, could face problems.

Crews also said the Goodlatte bill’s requirement that valid header information be shown has significant implications for free speech because of its impact on legitimate anonymous speech by senders.

"Given that the Internet can serve as the anonymous pamphlet of today, individuals must retain the right to safeguard their anonymity even in a mass-communications tool like e-mail," Crews wrote.

But Ray Everett-Church, executive director of the Coalition Against Unsolicited Commercial E-Mail (CAUCE), called the anonymity argument a red herring, noting that the bills before Congress now are an attempt to regulate commercial speech.

"You can have completely accurate headers that don’t disclose your identity," Everett-Church said. "If I thought any of the anti-spam legislation out there now outlawed anonymous speech, I’d be the first one to oppose it."

As to the claim that anti-spam legislation will lead to draconian privacy laws, Everett-Church said the excesses of marketers do more to drive calls for restrictive privacy laws than any legislation that has been proposed in response to those extreme activities.

"The fact remains that real harm is done to businesses and consumers by uncontrolled e-mail, and the effort to promote anti-spam legislation does less to harm free speech rights than it does to reinforce individual property rights – including the right to control our own computer networks and e-mail boxes," he said.

While the Cato study takes a decidedly "hands off" approach toward legislative solutions to nuisance e-mail, the study does offer some helpful suggestions for steering clear of spam, including reading the fine print before filling out online forms, and refusing to post e-mail address on personal Web sites or Usenet news groups or chat rooms.

CAUCE is at http://www.cauce.org.

The study is at http://www.cato.org/pubs/pas/pa-408es.html.