******** Background: http://www.politechbot.com/p-02066.html http://www.politechbot.com/p-02063.html ******** CDT POLICY POST Volume 7, Number 4, June 1, 2001 A BRIEFING ON PUBLIC POLICY ISSUES AFFECTING CIVIL LIBERTIES ONLINE from THE CENTER FOR DEMOCRACY AND TECHNOLOGY CONTENTS: (1) LABELING MANDATES IN ANTI-SPAM LEGISLATION THREATEN FREE SPEECH. (2) SPAM: A PROBLEM REQUIRING BALANCED SOLUTIONS THAT RESPECT FREE SPEECH (3) MANDATORY CONTENT LABELING VIOLATES FIRST AMENDMENT (4) ISP TERMS OF SERVICE SHOULD NOT HAVE THE FORCE OF LAW ------------------------------------------------------------------------ (1) LABELING MANDATES IN ANTI-SPAM LEGISLATION THREATEN FREE SPEECH. Legislation currently under consideration in Congress to curtail spam - or unsolicited commercial electronic mail (UCE) - contains provisions that threaten free speech by, among other things, requiring labeling of UCE containing lawful "adult" material. H.R. 718, introduced by Rep. Heather Wilson (R-N.M.), has gone through several versions. On Thursday, May 24, 2001, the House Judiciary Committee approved the bill. Key provisions of the bill make it a federal crime to intentionally transmit 10 or more unsolicited commercial email messages in a protected computer in the US knowing that the messages' header information "is materially false or misleading as to the identity of the person initiating the transmission." While CDT has supported similar anti-spoofing provisions in the Senate, penalties provided for in the House bill are troubling. A first offense under this section is punishable by a fine and subsequent offenses may be punished by imprisonment for up to one year. In addition, ISPs could seek damages, with the total liability for any one misleading spam incident capped at $1 million. More worrisome is an amendment adopted by the Judiciary Committee at the behest of Rep. Melissa Hart (R-PA) requiring that UCE containing adult content carry a header labeling it as such. Such a provision creates the threat of forced speech and stigmatizes potentially beneficial and lawful, though adult, speech. It also gives the Justice Department broad discretion to determine what is acceptable bulk mail and what is not. The bill was previously reported by the House Commerce Committee with additional and controversial provisions making it illegal to send spam in violation of the terms of service of the recipient's ISP. See (4) below. CDT believes that both the mandatory labeling provision and penalties in the Judiciary bill and the ISP terms of service provision in the Commerce Committee bill are unnecessary, out of proportion to the UCE problem. H.R. 718 as introduced and reported by the Commerce Committee is available through CDT's Legislation page: http://www.cdt.org/legislation/107th/junkmail/. ------------------------------------------------------------------------ (2) SPAM: A PROBLEM REQUIRING BALANCED SOLUTIONS THAT RESPECT FREE SPEECH The efficiency of email - perhaps the Internet's most widely-used application - has brought with it some problems. Because a sender can almost effortlessly transmit a message to thousands, or even millions of recipients, the sending of UCE to vast email address lists has proven to be irresistible to some businesses. However, unlike postal mail, the full cost of spam is not borne by the sender. Instead, the cost is shifted to intermediaries, such as Internet service providers (ISPs), and to recipients. While each individual email message only utilizes a minimal amount of Internet resources, when multiplied by the millions, such bulk messages can easily clog data pipelines and force both ISPs and recipients to spend time and resources to deal with what are frequently unwanted messages. Compounding the issue and raising the political heat is the use of UCE by purveyors of adult material. In 1998, CDT coordinated an ad hoc working group on UCE, which submitted a report to the FTC concluding that there were ways to respond to UCE that were consistent with the First Amendment. The report found that a response to UCE should combine - * Better technical tools and public policies that allow individuals to indicate their desire to receive or not receive UCE and exercise greater control over incoming email messages. * Technical measures and public policies that prevent and/or prohibit the use of fraudulent headers to send unsolicited commercial email messages. * Self-regulatory efforts to create opt-out or opt-in programs. * Increased enforcement efforts, under existing laws, against email fraud. The anti-spoofing provisions of HR 718, and similar provisions in the Senate legislation, are consistent with these principles. Mandatory labeling and federalization of ISP terms of service tip the balance too far and threaten First Amendment values. The working group report on UCE is at http://www.cdt.org/spam/. ------------------------------------------------------------------------ (3) MANDATORY CONTENT LABELING VIOLATES FIRST AMENDMENT The House Judiciary bill as amended would mandate labeling of UCE that contains adult-oriented material. This amendment, while targeted at pornography, would set a terrible precedent. It is fundamentally distinct from the requirement prohibiting false header information, which applies to all commercial email, regardless of content and which is subject to objective determination. In contrast, mandatory content labeling is a form of forced speech, which is as offensive to the Constitution as forced silence. And deciding when something is properly labeled or not involves the government directly in the type of picking and choosing among otherwise legal content that is also incompatible with the First Amendment The amendment proposed by Congresswoman Hart and passed by the Judiciary Committee would require that senders of UCE label all email containing adult-oriented material. The amendment employs a standard provided many years ago for the Post Office in Title 39 of the United States Code, Section 3010, and "Mailing of sexually oriented advertisements." The standard for "sexually oriented material set forth in the statute is "any advertisement that depicts, in actual or simulated form, or explicitly describes, in a predominantly sexual context, human genitalia, any act of natural or unnatural sexual intercourse, any act of sadism or masochism, or any other erotic subject directly related to the foregoing." While it may be appropriate to apply such a requirement to the paper mail system, long operated as a government monopoly and still highly regulated in many respects, such a standard is not transferable to Internet email. The Internet is entitled to the highest form of First Amendment protection, according to the United States Supreme Court in the Reno v. ACLU decision of 1997. Moreover, the anti-spoofing provisions of the legislation will go a long way toward effectively eliminating the kind of UCE this provision attempts to address. Finally, it is crucial to note that this debate concerns only legal material. Distribution of child pornography and obscenity are already per se illegal, online as well as off, in which case labeling is not the issue. ------------------------------------------------------------------------ (4) ISP TERMS OF SERVICE SHOULD NOT HAVE THE FORCE OF LAW H.R. 718 as reported by the Commerce Committee also included a provision, not in the Judiciary Committee bill, that would make it illegal to send UCE that "uses the equipment of a provider of Internet access service," if such provider has in effect an anti-spam policy and has requested the sender not to use the equipment of the provider for the transmission of any unsolicited commercial electronic mail message. In other words, sending email in violation of the policy of the recipient's ISP would violate federal law. Granting ISP terms of service the force of law in this way could create negative consequences for free expression and impose burdens on due process. * While ISPs should be free to create their own terms of service in the marketplace, giving the force of law to ISP terms of service effectively allows commercial entities to create federal law without the scrutiny of the legislative process. For example, ISPs could decide not to accept certain labels; this provision would make doing so a federal crime. * Because there is no oversight, ISPs will have latitude to set terms of service may include broad restrictions on UCE that impede speech and expression, and those terms of service will have the force of law. * Giving force of law to ISP terms of service also raises issues of due process. Users and businesses would be required to know and adhere to the terms of service of each ISP that are subject to change without notice. In practical terms, when users send an email, they have no idea whether it violates their ISPs terms of service - in some cases users are not even aware of the identity of their ISP. For more information about free speech and spam see: http://www.cdt.org/speech/spam/. ------------------------------------------------------------------------ Detailed information about online civil liberties issues may be found at http://www.cdt.org/. This document may be redistributed freely in full or linked to http://www.cdt.org/publications/pp_7.04.shtml. ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. To subscribe, visit http://www.politechbot.com/info/subscribe.html This message is archived at http://www.politechbot.com/ -------------------------------------------------------------------------
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