FC: CDT says that proposed "anti-spam" laws go too far, harm speech

From: Declan McCullagh (declanat_private)
Date: Fri Jun 01 2001 - 13:04:02 PDT

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    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.
    
    
    
    
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