FC: Spam, junk faxes & free speech -- Politech members reply

[Declan McCullagh <declan () well com>]

Previous Politech message:
http://www.politechbot.com/p-03854.html

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Date: Wed, 07 Aug 2002 14:47:35 -0400
From: "Michael Carroll" <Carroll () law villanova edu>
To: <declan () well com>
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:carroll () law villanova edu>carroll () law villanova edu

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Date: Wed, 07 Aug 2002 15:17:47 -0400
To: declan () well com
From: Doug Isenberg <disenberg () gigalaw com>
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

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Date: Wed, 07 Aug 2002 15:46:35 -0400
To: declan () well com
From: Jonathan Weinberg <weinberg () mail msen com>
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
weinberg () msen com

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Date: Wed, 7 Aug 2002 12:07:54 -0700
From: Brad Templeton <brad () templetons com>
To: Declan McCullagh <declan () well com>
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.

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From: "Ray Everett-Church" <ray () everett org>
To: <declan () well com>
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

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From: "Richard M. Smith" <rms () computerbytesman com>
To: <declan () well com>
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$6501a8c0 () ne2 client2 attbi com>

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: <consulting () fax com>
Cc: <declan () well com>, <politech () politechbot com>
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





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