Anonymous commercial speech and federal spam legislation [sp][fs]

[Declan McCullagh <declan () well com>]

[FYI the general definition of commercial speech is that which proposes a 
commercial transaction. --Declan]

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Subject: RE: [Politech] Another round on what Congress spam bill actually 
does[sp]
Date: Wed, 3 Dec 2003 09:52:11 -0500
From: "Stegmaier, Gerard" <gstegmai () wrf com>
To: "Declan McCullagh" <declan () well com>, <politech () politechbot com>

Doesn't the notion of only criminalizing the anonymizing of commercial 
email constitute a content based restriction potentially subject to First 
Amendment concerns?

I think this remains in some respects part of the challenge to the FTC's 
Do-Not-Call List in the Denver Federal District Court.

While the speech rights of those who are unpopular and unsavory but who 
speak truthfully (e.g. not otherwise falsely or deceptively) may be speech 
we don't want to hear, it doesn't mean the Constitution shouldn't or 
doesn't afford it protection.

---

Date: Wed, 03 Dec 2003 11:29:34 -0500
From: "James Maule" <Maule () law villanova edu>
To: <declan () well com>
Subject: Re: [Politech] Another round on what Congress spam bill actually 
does[sp]

Again, this only applies to senders of commercial email.  I read some
case
law after reading this to see if there were any precendents, and
fortunately there aren't (at least that I could find in a quick 5
minute
search).  So, to recap, you can email to your heart's contect using an

anonymizer as long as it isn't unsolicted commercial email.  You can
email
anyone you want - you can even use false and misleading headers (if I
read
the CAN-SPAM legislation correctly) as long as your aren't selling a
product.

==================================

Well, true in the context of CAN-SPAM but there are other laws (and
administrative regulations) making the use of false and misleading
headers illegal (and in some instances a criminal violation) if the
purpose is to commit a crime or to violate some other law.

So long as the last sentence of the quoted paragraph isn't taken out of
context...

Jim Maule
Professor of Law, Villanova University School of Law
Villanova PA 19085
maule () law villanova edu
http://vls.law.vill.edu/prof/maule
President, TaxJEM Inc (computer assisted tax law instruction)
(www.taxjem.com)
Publisher, JEMBook Publishing Co. (www.jembook.com)
Owner/Developer, TaxCruncherPro (www.taxcruncherpro.com)
Maule Family Archivist & Genealogist (www.maulefamily.com)

---

To: Al Donaldson <al () escom com>
cc: declan () well com, gnu () new toad com
Subject: Re: [Politech] Another round on what Congress spam bill actually 
does [sp]
In-reply-to: <200312032210.hB3MAWn32417 () escom com>
Date: Wed, 03 Dec 2003 16:41:29 -0800
From: John Gilmore <gnu () toad com>
X-Spam-Checker-Version: SpamAssassin 2.60-the_well_m (1.212-2003-09-23-exp)
        on mh.well.com
X-Spam-Status: No, hits=0.0 required=3.8 tests=none autolearn=no
        version=2.60-the_well_m
X-Spam-Level:
X-UIDL: 74106bbb0d4e7c2de831069a6fa2f94e

> The real point of my note is to question whether S.877 will make
> inbound spam filtering illegal for commercial companies.

I believe that it will, at least for any return address used to send
any "commercial email" (as defined), which must accept unsubscribe
replies.

But the bill doesn't give individuals any power to enforce the bill.
And I challenge you to find a state attorney general, or a federal
agency, or an ISP, who will sue to uphold the right of someone like me
who is discriminated against as a "spammer" or "spam accomplice", to
have their email replies not be rejected by anti-spam measures.

I once contacted a federal agency to resolve an age discrimination
complaint.  I was about 22 years old at the time, and a company
refused to hire me because I was under 25.  The law merely said that age
discrimination was illegal.  But the agency said "That law was passed
to help old people, not young people", and hung up on me.

        John

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Date: Thu, 04 Dec 2003 08:40:37 -0800
To: cjlamb () camharris com
From: Steve Schear <s.schear () comcast net>
Subject: Re: [Politech] Another round on what Congress spam bill
  actually does [sp]
Cc: Declan McCullagh <declan () well com>, gnu () toad com
In-Reply-To: <6.0.0.22.2.20031126090736.030c16e8 () mail well com>


> To: gnu () toad com
> Cc: Declan McCullagh <declan () well com>
> Subject: Re: [Politech]         Why Fed spam law is absolutely evil, by 
> John Gilmore [sp]
> From: cjlamb () camharris com
> Date: Mon, 24 Nov 2003 09:33:25 -0500
>
> John,
> I normally agree with what you say, but in this case, I think you're way 
> out in left field:


> I don't believe that anonimity has any place in the commercial realm.  Do 
> you honestly want some anonymous person hawking their wares at you with no 
> way to track them down??   Do you feel that I should be able to hawk 
> whatever I want to whomever I want with no way for anyone to limit 
> me?   Can you honestly defend the right of someone to blindly email any 
> information to anyone with no way to stop them?

Actually, I think you're in left field and John is in right field :-)

I can see a number of reasons why someone who is involved in commercial 
speech might not want to be identified.  Suppose you're selling a gray 
market product or service:
- a product to bypass copyright limitations on a product you've 
purchased.  Something that Congress doesn't want you to have but many 
citizens feel allows them to exercise their fair use rights
- a life saving medicine which has proven effective in Europe but the FDA 
hasn't yet endorsed


> I'm proud to call myself a liberal and am very free speech oriented.  I 
> don't even think the CAN-SPAM is a good bill.  But, short of taxing email 
> (which I oppose - for now), I can't come up with a better alternative.

Email postage may be a great idea, as long as it allows continued 
anonymity.  I personally would have no problem paying recipients to read my 
email, if its the recipient and not the ISP that receives the postage value 
(if any).

> Can you?  According to a study by Brightmail, last year over 40% of all 
> email was spam.  That was 2002 - I imagine in 2003, it's inched up to the 
> 50% mark - at least in my inbox.  For my web based mail clients, like 
> Hotmail, it's about 90 - 95%.

I have lots of email accounts and the only ones which receive lots of spam 
are ones I've used carelessly [e.g., posted to places that are a spam 
magnet or used a common address prefix (e.g., john () abc net)].  I've had the 
account this mail was sent from (and its linked predecessor) for years, 
post frequently, and still only get 5-10 spam messages per day (I get more 
in my postal box).  Spam may be a big bandwidth waster of ISPs but its not 
a personal bother.

steve


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