The Network Connection

This column is a continuing feature of Benchmarks intended topresent news and information on various aspects of wide area networks.

"Spam," as unsolicitited E-mail advertisements have come to be known, are another hot topic on the Internet these days. The spam controversy is related to other privacy issues, as advertisers frequently rely on personal information they havegleaned from other sources to find out your E-mail address. This guest article is a portion of a paper printed in the Berkeley Technology Law Journal, which is published by the University of California at Berkeley's Boalt Hall School of Law. The article below is from part III, section 2 a. of the paper. It is reproduced with permission. The entire article can be found at http://server.berkeley.edu/BTLJ/articles/11-2/carroll.html - Ed.

Private regulation alone will not be able to stop electronic junk mail from overwhelming or impeding the functioning of the emerging information network. Therefore, some form of government regulation will be necessary. Already, the federal government has begun to contemplate regulation of electronic junk mail on the Internet.[141] This subsection briefly describes an argument that Congress already has banned electronic junk mail, and then--concluding that the argument is unpersuasive--considers the constitutional issues likely to arise if the government engages in more explicit regulation of electronic junk mail.

Arguably, the Telephone Consumer Protection Act of 1991 (TCPA)--by its ban on sending unsolicited advertisements to a "telephone facsimile machine"--already makes illegal the sending of electronic junk mail. This textual argument has some surface appeal. It could potentially take care of the whole spamming problem without any new enactments.

The TCPA makes it unlawful for any person within the United States "to use any telephone facsimile machine, computer or other device to send an unsolicited advertisement to a telephone facsimile machine." [142] Thus, the focus is on the receiving device; to violate the TCPA, a spammer using a computer must simply send an "unsolicited advertisement" to a "telephone facsimile machine." An "unsolicited advertisement" is broadly defined as "any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission.".[143] The TCPA defines a "telephone facsimile machine" as:

[E]quipment which has the capacity (A) to transcribe text or images, or both, from paper into an electronic signal and to transmit that signal over a regular telephone line, or (B) to transcribe text or images (or both) from an electronic signal received over a regular telephone line onto paper.[144]

Relying on the text of the statute, one could argue that a spammer violates the law when he sends an unsolicited advertisement from his computer over regular telephone lines to another computer via the Internet. That other computer is "equipment which has the capacity" to take the electronic signal and transcribe it onto paper--anyone can print their email. Further support for this reading can be found in the FCC interpretation of the TCPA to mean that a "telephone facsimile machine" includes fax/modems attached to a computer.[145] The fax/modem is a device capable of receiving an electronic signal sent either as an image file (fax) or a text file (electronic mail).

In either case, the fax/modem makes it possible for the signal to be transcribed onto paper.

As appealing as this argument may be to those who wish to make spamming illegal, it presents a problem. If the government were to rely on this textual argument to apply the TCPA to spamming on the Internet, a court likely would find that application to violate the First Amendment. Most of the elements that persuaded the Ninth Circuit to uphold the ban as applied to conventional fax machines are not present in the context of junk mail on the Internet. [146]

In the fax context, the government persuaded the court that the ban was reasonably fitted to the government's interest in preventing unfair cost-shifting and preclusion of desired communications by unsolicited advertisements.[147] Neither of these harms are equally presented by unsolicited electronic mail.

There may be some cost-shifting for those who subscribe to commercial online services and who pay by the minute--these people pay for the time it takes to delete and/or download the junk mail. But many others have Internet access for which they pay a flat rate, which means that they incur no marginal cost in dollars and cents for the time it takes to throw out the spam.

Arguing that spam precludes other electronic mail messages is even more difficult. At present, the scale of the problem has not reached the level at which the network's electronic memory has been filled to capacity with electronic junk mail. Generally, electronic mail messages do not go undelivered because the addressee's box is overflowing with spam. The best argument for why message-preclusion is as big a problem with electronic junk mail as it is with fax solicitations is that in both cases what is precluded is timely receipt of a desired communication.

In the fax context, if a business does not receive a desired communication because junk faxes are tying up the line, that communication may eventually get through, but the business will have been precluded from receiving the message in a timely fashion. Similarly, with electronic junk mail, a business has not effectively "received" a desired communication until it is identified. If someone in the business has to scroll through and delete large amounts of electronic junk mail on a daily basis, that junk mail is precluding the business from effectively receiving its desired communications in a timely fashion.

This argument is problematic because it proposes a more subjective standard for preclusion. In the fax context, an unsolicited advertisement precludes a desired communication from reaching the recipient's "premises" at the time the fax is sent because the two machines cannot connect. In the electronic mail context, a desired communication reaches the recipient's "premises" to the same extent that all other electronic mail messages do because the two machines, via the network, connect.

To withstand intermediate scrutiny, the government must assert a aubstantial interest in imposing the regulation, and the regulation must alleviate a real harm.[148] The government interest in avoiding message preclusion is probably in preventing desired communications from being precluded from reaching the recipient's premises. This would be the case because the government risks its claim to a "substantial" interest in preventing message-preclusion if that interest is defined in the vague terms of preventing only the "untimely receipt" of desired communications. If preventing preclusion from the premises is the government interest, then that interest is present in the ban on unsolicited faxes but not present if the ban is applied to electronic junk mail. Thus, governments probably cannot enforce the TCPA as a ban on electronic junk mail.[149] The government may be able to ban electronic junk mail, but specific findings and potentially a different rationale may be necessary for such a ban to be constitutionally permissible.

[141]. For example, the Federal Trade Commission devoted one of a series of hearings on regulating unfair business practices on the Internet to the junk mail problem. November 20, 1995. In addition, the Clinton Administration has advised providers of telecommunications services to get consumers' permission before using or selling information about their customers. See Regulators/Regulations: Recommendations for Telecom Privacy, DOT.COM, Nov. 1, 1995 (citing a Commerce Department report providing "recommendations" to the industry). Should the industry ignore the Administration's advice, formal regulations may follow. Id.

[142]. 47 U.S.C. section 227(b)(1)(C) (emphasis added).

[143]. 47 U.S.C. section 227(a)(4).

[144]. 47 U.S.C. section 227(a)(2).

[145]. Memorandum Opinion and Order, supra note 58, at 12405-06.

[146]. See Destination Ventures, Ltd. v. FCC, 46 F.3d 54 (9th Cir. 1995) (relying on district court's use of legislative history and fact that junk fax universally involves unfair cost-shifting to uphold TCPA's ban on unsolicited fax advertising), aff'g 844 F. Supp. 632 (D. Or. 1994).

[147]. Id.

[148]. Edenfield v. Fane, 507 U.S. 761, 770 (1993).

[149.] See Michael D. McConathy, Destination Ventures, Ltd. v. FCC and Moser v. FCC.: How Much Should the Telephone Consumer Protection Act Restrict Your Phone, Fax and Computer?, 26 GOLDEN GATE U. L. REV. 153, 180-81 (1996) (implicitly concluding that TCPA does not ban solicitation by electronic mail).

[*]. (c) 1996 Michael W. Carroll, J.D., 1996, Georgetown University Law Center; A.B., 1986, University of Chicago. I would like to thank Susan Low Bloch, Richard Chused, Ron Friedmann and the editors of the Berkeley Technology Law Journal for their substantive comments and suggestions. Thanks also go to Kristy, Madeleine, Vivian, William and Roberta Carroll for their patience and support.

[***]. An earlier version of this article won first prize in the 1996 Berkeley Technology Law Journal Comment Competition.

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