Previous Politech message: http://www.politechbot.com/p-03854.html --- Date: Wed, 07 Aug 2002 14:47:35 -0400 From: "Michael Carroll" <Carrollat_private> To: <declanat_private> Subject: Re: FC: FCC levies $5.4 million junk fax fine -- but will it stick? Hi Declan, You're right to point out the connection between the law supporting the junk fax fine and proposed spam legislation. The Ninth Circuit Court of Appeals found the the ban on "junk faxes" to be constitutional back in 1995. My law review article on the constitutionality of spam regulation, which discusses the junk fax ban as well, is at <http://www.law.berkeley.edu/journals/btlj/articles/11_2/Carroll/html/text.html>http://www.law.berkeley.edu/journals/btlj/articles/11_2/Carroll/html/text.html Best, Michael W. Carroll Assistant Professor of Law Villanova University School of Law 299 N. Spring Mill Road Villanova, PA 19085 (610) 519-7088 (610) 519 5672 (fax) <mailto:carrollat_private>carrollat_private --- Date: Wed, 07 Aug 2002 15:17:47 -0400 To: declanat_private From: Doug Isenberg <disenbergat_private> Subject: Re: FC: FCC levies $5.4 million junk fax fine -- but will it stick? At 01:18 PM 8/7/02, you wrote: >This has implications for federal anti-spam legislation. If the "junk fax" >law can't stand, how could an anti-spam law? Perhaps. As you now, earlier this year a federal district court in Missouri found this law (the Telephone Consumer Protection Act) unconstitutional in violation of the First Amendment; but two others courts -- a district court in Oregon and the U.S. Court of Appeals for the Ninth Circuit -- have upheld the junk fax law. In her article, "The First Amendment, Junk Faxes and Spam," University of Washington law school professor Anita Ramasastry compared the junk-fax law to anti-spam laws: "Most of the state laws dealing with unsolicited spam appear to satisfy First Amendment requirements regarding commercial speech, for several reasons. First, they are not absolute bans. Second, many of them mirror the junk mail and telemarketing 'opt out' processes. Third, to the extent that they simply require spammers not to engage in fraudulent or misleading speech, in the subject line or otherwise, that is entirely constitutional, for the First Amendment does not protect fraudulent speech." See http://www.gigalaw.com/articles/2002/ramasastry-2002-05.html Doug Isenberg, Esq. Author, "The GigaLaw Guide to Internet Law" (Random House, October 2002): http://www.GigaLaw.com/guide FREE daily Internet law news via e-mail! Subscribe today: http://www.GigaLaw.com/news --- Date: Wed, 07 Aug 2002 15:46:35 -0400 To: declanat_private From: Jonathan Weinberg <weinbergat_private> Subject: Re: FC: FCC levies $5.4 million junk fax fine -- but will it stick? Declan -- There's been no further action in the Missouri case you refer to. But a bunch of other federal courts, including the Ninth Circuit, had already held that the junk fax statute *is* constitutional. Under those circumstances, the fact that a single district judge disagrees isn't going to stop the FCC from continuing to enforce the law nationwide. If the Eight Circuit upholds the district court's ruling (which I think is pretty unlikely), then the FCC will have to start paying attention, and presumably will push for Supreme Court review to settle the question. Jon Jonathan Weinberg Professor of Law, Wayne State University weinbergat_private --- Date: Wed, 7 Aug 2002 12:07:54 -0700 From: Brad Templeton <bradat_private> To: Declan McCullagh <declanat_private> Subject: Re: FC: FCC levies $5.4 million junk fax fine -- but will it stick? On Wed, Aug 07, 2002 at 01:18:34PM -0400, Declan McCullagh wrote: > Earlier on Politech we saw a federal district court rule in a case > involving fax.com: > > "Federal court rules ban on 'junk faxes' violates First Amendment" > http://www.politechbot.com/p-03394.html > > I don't know what the status of this case is (has an appeals court gone the > other way?), but it seems possible that the FCC's "junk fax" fine will also > be tossed out. > > This has implications for federal anti-spam legislation. If the "junk fax" > law can't stand, how could an anti-spam law? My own research into anti-spam laws indicated that most of those proposed would not be constitutional, and indeed the same arguments would apply to the junk fax law. Most of the state laws are unconstitutional as far as I can tell (though courts are in disagreement) because they place a burden on all E-mailers to know what state they are mailing to, something that many E-mailers have no idea about. The idea that states can regulate _anything_ about E-mail (be it motherhood or be it spam) is disturbing, because that implies that for every E-mail you send, you must know what state it is going to, learn the laws of that state, and obey them. The trick there is that if I in California mail a user whose location I do not know (as I do every day) and the person happens to be in California, state laws require me to figure out where the user is, to assure they are not in a state where the E-mail might violate that law. However, the dormant commerce clause forbids other states from placing any bounds on mail entirely within or between other states. That's the province of the feds. When it comes to commercial speech, we have two contractictory principles. In Central Hudson, the court ruled that commercial speech was protected but less protected that non-commercial speech, and set out a test for regulation of it that was looser than the strict requirements of general speech regulations. However, in Cincinatti vs. Discovery Network, the court ruled that you can't use that lesser protection as a loophole when the commercial nature of the speech is not what is being regulated. Spam is, alas, not inherently commercial. Most spam is commercial but one also routinely sees religious, political, charitable and philosophical spam. And of course much spam that is not selling something at all, but trying to scam you (by offering to deposit THIRTY-TWO-MILLION-DOLLARs in your account for example.) Thus the problem. You can't ban "just the commercial spam" to make use of the loophole that gives lower protection to commercial speech. The core of spam is the abuse of bulk e-mail, advertising is just one common motive. You can regulate the time and manner of a form of speech, including spam, and put on regulations on the use of bulk e-mail -- but these would have to stand up to stricter tests, including the "least restrictive means" test, which most spam laws would have trouble meeting. Junk fax is much more solidly commercial, I don't think I've ever received a non-commercial junk fax, so it might withstand this test. Of course, most people should now realize that the issue is moot. The 23 state laws have not been rendered unconstitutional yet, but they are demonstrably useless, and have slowed the tide of spam not one whit. Nor is a federal law likely. It is a global problem whose solutions lie elsewhere, and certainly not in conceding to the government the power to regulate E-mail. --- From: "Ray Everett-Church" <rayat_private> To: <declanat_private> Subject: RE: FCC levies $5.4 million junk fax fine -- but will it stick? Date: Wed, 7 Aug 2002 12:30:13 -0700 Judge Limbaugh's decision doesn't affect FCC enforcement of the TCPA. And since Fax.com has been previously cited by the FCC for TCPA violations, they had their warning that future violations would incur the statutory penalties. Personally, I've filed complaints with the FCC for junk faxes I've received from Fax.com, so it's good to know the FCC is taking action. In the new book Internet Privacy for Dummies, my co-authors and I have listed tips on how to sue junk faxers and others who violate the TCPA... it's a booming business! :) -Ray --- From: "Richard M. Smith" <rmsat_private> To: <declanat_private> Subject: RE: FCC levies $5.4 million junk fax fine -- but will it stick? Date: Wed, 7 Aug 2002 14:09:50 -0400 Message-ID: <001601c23e3d$a7cf40e0$6501a8c0at_private> Declan, I had a very bad junk FAX problem at my home office. I solved it by disconnecting my FAX machine and shutting off my FAX phone line. Instead I hook up my FAX machine to my regular phone line on an as-need basis. In a similar vein, we cancelled my daughter's distinct ring number because it started getting too many telemarketing calls. We already took measures on with our regular phone number to stop telemarketers, but I didn't want to spend the time on a second number. Altogether Verizon has lost about $400 per year in revenues from my family because of abusive marketing practices by other companies. The telemarketing industry loves to talk about their contribution to the U.S. economy. However they seem to be silent on the issue of the costs to economy of people opt-outing of using telecommunications services to avoid junk marketing. My big concern is that the junk marketers will discover text message spam on cellphones. Pretty clearly, if this happens, people will start turning off their cellphones a lot more to avoid being interrupted by spam messages. Both consumers and wireless companies would loose in the case. Unfortunately the wireless companies have made cellphone spam so easy by having cellphone email addresses be the same as people's cellphone numbers. Richard M. Smith http://www.computerbytesman.com --- From: "SteelHead" <bill@ries-knight.net> To: <consultingat_private> Cc: <declanat_private>, <politechat_private> Subject: Removal from all fax lists Date: Wed, 7 Aug 2002 12:28:28 -0700 Dear FAX.COM, I understand that you provide faxing services for many companies and groups. If we, as individuals, companies and groups, decide we do not want unsolicited faxes wasting our fax time and wasting our fax supplies and prematurely wearing out our fax machines, what recourse do we have? Do you supply a contact point with every fax that does not cost us money or time or resources? A contact point telling you to go away and never bother us again? Why must it be up to me to tell you to go away, why can't you take the time to ASK PERMISSION before sending us faxes. You are welcome to spend your money and send me mail by surface. I suppose you do not, nor will you ever ask permission to send a fax. I shall suggest, therefore, that everyone getting a solicited fax call at least once a day to the contact person on each junk fax for a week to tell the sender of the fax that we are just wasting their valuable time and resources as they do for us. I would hope that if we all did this, the companies doing the fax solicitation would therefore realize the loss of money and resources not to be equal to the business gains. I also suggest that we all start forwarding the same junk faxes to the courts in the 8th Circuit as "friend of the court" information as well as the legislators that represent us. They might take note of the severity of the problem. Something might come of it. We also, might piss off the wrong people, but I think it is a risk worth taking. My 2 cents Bill ries-knight ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. To subscribe to Politech: http://www.politechbot.com/info/subscribe.html This message is archived at http://www.politechbot.com/ Declan McCullagh's photographs are at http://www.mccullagh.org/ ------------------------------------------------------------------------- Like Politech? Make a donation here: http://www.politechbot.com/donate/ -------------------------------------------------------------------------
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