Letter to the Senate Urging Opposition to S.877, the "Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003"

Letter to the Senate Urging Opposition to S.877, the "Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003"

Dear Senator:

S. 877, the ""Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003,"" or the ""CAN-SPAM Act of 2003,"" attempts to address spam through imposition of civil and criminal penalties. While the bill addresses ""commercial"" electronic mail, the definition of ""commercial"" is elusive, particularly where a commercial purpose is inextricably intertwined with speech that is also political or educational in nature and therefore clearly the highest form of protected speech. As a result of this confusion, speakers will likely err on the side of compliance with the provisions of the bill, thereby chilling protected speech, or penalizing speech that should be considered noncommercial. Additionally, certain provisions of S. 877 are not narrowly tailored in that they apply to any unsolicited commercial electronic mail message rather than messages sent in bulk. Finally, the provision regarding ""identifiers"" constitutes a form of prior restraint and compelled speech, endangering constitutionally protected anonymous speech. For all of these reasons, we urge you to vote against S. 877 when it comes to the floor for a vote.

In addition to the problems noted above, it is unlikely the bill will even work. As the Committee Report (S. Rept. 108-102) notes, ""although North America receives over half of all spam sent each day, only 11 percent of spam claims to emanate from North America."" While this low percentage may be partially accounted for because of the practice of ""bouncing"" email from North American servers to misconfigured e-mail servers overseas (""open relays""), the fact is that some spammers have already moved their operations out of the United States. More are likely to do so if this bill passes. While the bill may result in a temporary reduction in spam immediately after passage of the bill, once spammers set up their operations overseas, the level of spam is likely to continue to rise.

The definition of ""commercial electronic mail message"" may chill speech in cyberspace.

S. 877 defines commercial electronic mail message as ""an electronic mail message the primary purpose of which is the commercial advertisement or promotion of a product or service (including content on an Internet website operated for a commercial purpose).""[1] While the phrase ""primary purpose"" provides some delineation, it may be insufficient in practice to avoid problems. Because ""commercial speech"" is often broadly defined, S. 877 may also sweep broadly, encompassing noncommercial, political, and even educational speech that is highly protected under First Amendment jurisprudence, simply because it is intertwined with some form of ""commercial"" speech.

The United States Supreme Court has held that commercial speech is ""speech proposing a commercial transaction."" Central Hudson Gas & Elec. v. Public Serv. Comm'n, 447 U.S. 557, 562 (1980), Bolger v. Youngs Drug Products Corp. 463 U.S. 60, 66 (1983).  Within those narrow confines, the definition may be sufficient.  The question of what constitutes commercial speech however is far more nuanced, and bright lines are hard to find.  For example, in Rubin v. Coors Brewing Co., 514 U.S. 476 (1995), the Court found that a statement of alcohol content on the label of a beer bottle constituted commercial speech. Likewise, the Court found commercial speech in statements on an attorney's letterhead and business cards identifying him as a Certified Public Accountant and Certified Financial Planner. Ibanez v. Florida Dept. of Business & Professional Regulation, Bd. Of Accountancy, 512 U.S. 136 (1994).

In Bolger, the United States Supreme Court was faced with a question of whether a federal law prohibiting the mailing of unsolicited advertisement for contraceptives violated the federal Constitution's free speech provision as applied to certain mailings by a corporation that manufactured, sold, and distributed contraceptives.  One category of the mailings in question consisted of informational pamphlets discussing the desirability and availability of prophylactics in general or the corporation's products in particular. The Court noted that these pamphlets did not merely propose commercial transactions. Bolger, supra. at 62. While the parties conceded the pamphlets were advertisements, the Court did not find that fact alone sufficient to make them commercial speech, because paid advertisements are sometimes used to convey political or other messages unconnected to a product or service or commercial transaction. Id. The Court concluded that a combination of three factors, all present in this case, provided strong support for characterizing the pamphlets as commercial speech.  The three factors examined by the court were: (1) advertising format; (2) product references; and (3) commercial motivation.

Part of the difficulty in applying Bolger is that the Court rejected the notion that any one of the factors was sufficient by itself, but also declined to hold all of these factors in combination, or any one of them individually, was necessary to support characterizing certain speech as commercial. Id. at 67, fn. 14, and 66, fn. 13.  It is no wonder the Supreme Court in later decisions acknowledged that ""ambiguities may exist at the margins of the category of commercial speech."" Edenfield v. Fane, 507 U.S. 761, 765 (1993). See also, Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 419 (1993) [recognizing ""the difficulty of drawing bright lines that will clearly cabin commercial speech in a distinct category""] and Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 637 (1985) [stating that ""the precise bounds of the category of ... commercial speech"" are ""subject to doubt perhaps.""].

Illustrative of this problem is Nike v. Kasky, a case the Supreme Court recently dismissed as having improvidently granted certiorari. Several members of the Court specifically noted the difficulty of the questions presented. In Kasky v. Nike, 27 Cal. 4th 939 (2002), Nike responded to allegations that in the overseas factories where Nike products were made workers were paid less than the applicable local minimum wage; required to work overtime; allowed and encouraged to work more overtime hours than applicable local law allowed; subjected to physical, verbal, and sexual abuse; and exposed to toxic chemicals, noise, and heat, without adequate safety equipment, in violation of applicable local occupational health and safety regulations. In responding to these allegations, Nike made statements and press releases, wrote letters to newspapers, wrote a letter to university presidents and athletic directors, and distributed other documents for public relations purposes.  Nike also bought full-page advertisements in leading newspapers to publicize a report that found no evidence of illegal or unsafe working conditions at Nike factories in China, Vietnam, and Indonesia.  Based on these statements, Kasky filed a private attorney general action against Nike based upon California's unfair competition law and false advertising law.  

There was no question that the allegations against Nike were fully protected under the First Amendment to the United States Constitution. The issue for the California Supreme Court was whether Nike's responses to the allegations were commercial or noncommercial speech for purposes of constitutional free speech analysis.  Despite the fact that none of Nike's responses proposed a commercial transaction, the California Supreme Court deemed the speech ""commercial,"" providing it less protection than the initial allegations.  In a dissent, Justice Chin noted that ""[w]hile Nike's critics have taken full advantage of their right to ' uninhibited, robust, and wide-open' debates, the same cannot be said of Nike, the object of their ire. When Nike tries to defend itself from these attacks, the majority denies it the same First Amendment protection Nike's critics enjoy.  Why is this, according to the majority?  Because Nike competes not only in the marketplace of ideas, but also the marketplace of manufactured goods.  And because Nike sells shoes--and its defense against critics may help sell those shoes--the majority asserts that Nike may not freely engage in the debate, but must run the risk of lawsuits under California's unfair competition law and false advertising law should it ever make a factual claim that turns out to be inaccurate.""  Quoting from First National Bank of Boston v. Bellotti, 435 U.S. 765, 785-86 (1978), Justice Chin stated, ""[W]here. . .suppression of speech suggests an attempt to give one side of a debatable public question an advantage in expressing its views to the people, the First Amendment is plainly offended.""

Because the Supreme Court has dismissed the case, Nike must now defend the allegations in a California court. It remains to be seen whether the case will wend its way back to the Supreme Court, and whether the Court will attempt to more adequately define ""commercial"" speech.

To use the language of S. 877, what was the ""primary purpose"" of Nike's responses?  Nike was clearly responding in a public debate concerning the use of low-cost foreign labor to manufacture goods sold in America.  Nike's statements regarding its labor practices in China, Thailand, and Indonesia provided vital information on this very public controversy.  None of Nike's responses included product labels, inserts, packaging, or commercial advertising intended to reach only Nike's actual or potential customers.  Yet, the majority of the California Supreme Court concluded that Nike's speech was ""commercial,""[2] entitled to less protection than the initial allegations.  Thus, instead of a level playing field, Nike is disadvantaged simply because it may have an economic motivation in engaging in public debate.

This uncertainty as to what is and is not ""commercial speech"" may have the very real effect of chilling not only commercial speech, but speech that should be fully protected under the First Amendment.  This bill does little to settle the controversy, and now transfers the problem from the real world to cyberspace. For example, if Kasky had sent out a mass e-mail describing Nike's business practices, that would normally be considered non-commercial speech, and fully protected under the First Amendment and this bill`. If Nike then responded in a like manner, it could be held liable under S. 877 simply because it had an ""economic motivation"" in responding, and used the Internet as the medium of its response.

The uncertainties created by this bill do little to foster business, and chills both commercial and non-commercial speech.

S. 877 fails to recognize the extremely fluid nature of human relationships, particularly in the business context. A conversation at a cocktail party or a conference can move into and out of commercial speech without any clear demarcation. Subsequent e-mail communication seeking to solidify those connections may be ambiguous enough so that whether they warrant the label ""advertisement"" is unclear. The warmth, informality and frequency of such correspondence may well be checked by rules requiring ""prior consent"" or the placement of a word or phrase to denote that the e-mail is an ""advertisement."" Many individuals may inadvertently violate the law, and others may choose to avoid even legitimate correspondence out of fear of criminal or civil sanctions. This bill may also chill commercial outreach in a context unlikely to aggrieve e-mail recipients. For example, suppose a vendor attends a specialized industry conference, where she hears complaints about the lack of a useful product on the market. Upon returning to her company, she secures assurances that the company can develop that product. Under S. 877, she may be prohibited from sending that information out to the list of conference attendees who would be delighted to receive it. While S. 877 exempts certain ""transactional or relationship"" messages, the circumstances discussed in this paragraph are not covered within that definition.

The bill should only apply to bulk mail, which should be specifically defined. Failure to do so subjects the bill to challenge under Central Hudson Gas v. Public Service Commission and 44 Liquormart Inc. v. Rhode Island.

The Supreme Court has recognized that the First Amendment applies to the Internet. Reno v. ACLU, 521 U.S. 844, 117 S. Ct. 2329 (1997). Any restriction on speech on the Internet must therefore be scrutinized for its First Amendment implications.

S. 877 applies solely to commercial speech in the form of commercial electronic mail. Commercial speech is protected under the First Amendment to the United States Constitution. In Bigelow v. Virginia, 421 U.S. 809 (1975), the United States Supreme Court held that ""speech is not stripped of First Amendment protection merely because it appears"" as a commercial advertisement. Id. at 818.  In 1976, the Court reaffirmed that speech that ""does no more than propose a commercial transaction"" is protected by the First Amendment. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 762 (1976).

In order for the government to regulate commercial speech, it must have a ""substantial governmental interest."" Furthermore, the regulation must be no more extensive than necessary to achieve the government's interest. Central Hudson Gas v. Public Service Commission, 447 U.S. 557 (1980).  

The Supreme Court strengthened commercial speech protections in 44 Liquormart Inc. v. Rhode Island, 116 S. Ct. 1495 (1996). In 44 Liquormart, the Court invalidated a regulation banning the advertisement of liquor prices. Justice Stevens, writing for a plurality, noted that when scrutinizing restrictions on truthful commercial speech, ""there is far less reason to depart from the rigorous review that the First Amendment generally demands."" 116 S. Ct. at 1507. The plurality further noted that commercial speech restrictions on truthful information are only justified where there are ""no less onerous alternatives."" With these words, the plurality veered toward a strict scrutiny approach. Thus, to regulate truthful commercial speech, the government must have a substantial government interest, and the regulation must be narrowly tailored and the least onerous of the alternatives.

While S. 877 declares a substantial government interest, it fails to narrowly tailor the regulation to achieve that asserted interest.[3] 

Section 2(a)(3) focuses on the effect of the increasing abundance of UCE on network bandwidth, network storage costs, and so forth, as well as the cost to consumers in terms of reading and/or deleting such e-mail. Internet Service Providers testifying on similar bills, have argued that the rationale for regulation of UCE was not the isolated unsolicited commercial electronic message, but the sheer volume of bulk commercial electronic mail. On the Internet, it often costs virtually the same to send one message or one thousand messages. The testimony suggested that flooding the Internet with bulk unsolicited electronic mail caused servers to crash, and costs to mount for the Internet service providers. Recipients were inundated with messages on how to ""get rich quick."" Thus, the harms discussed in the testimony were directly related to bulk unsolicited commercial electronic mail, rather than unsolicited electronic mail in general. 

S. 877 does not discuss bulk electronic mail. It prohibits any unsolicited commercial electronic mail failing to meet the bill's requirements. For example, suppose you met someone on an airplane who you thought might be a good business prospect. You exchanged business cards, and she had her e-mail address on the card. When you get back to your office, you send her an e-mail proposing a business transaction. The e-mail is truthful and accurate, but fails to abide by all the restrictions contained in the bill. According to S. 877, you may now have sent an unsolicited commercial electronic mail message, subjecting you to the possibility of sanctions.

The net cast by S. 877 is therefore far too broad and is likely to run afoul of Central Hudson and 44 Liquormart. The bill should define bulk mail and apply the regulations to those who send such mail. Bulk mailers are often far more likely to have the resources to comply with these rules. The average small business-person sending out a couple of e-mails here and there to drum up business is unlikely to have the same resources, yet this bill treats them both the same.

A more narrowly tailored approach would be to establish a national ""do not spam"" list, similar to the ""do not call"" list. Consumers who wish to receive spam could continue to do so, while those who wish not to receive it could enter their e-mail address on the ""do not spam"" list. An ""opt-out"" approach for junk mail was upheld by the Supreme Court in Rowan v. United States Post Office, 397 U.S. 728 (1970). There, the Court found that the mailer has a right to communicate, but the recipient has the option to remove herself from the list and thereby refuse any further mailings. Under such a program, the mailers' right to communicate is preserved, while the recipients' right to choose which messages to receive is likewise protected. In apparent recognition of this fact, Section 9 of S. 877 requires the Federal Trade Commission to submit a report to Congress recommending a workable plan and timetable for creating a nationwide ""do-not-spam"" list. 

The provision requiring ""identifiers"" should be deleted. It is a form of prior restraint and compelled speech. 

S. 877 additionally requires a clear and conspicuous identifier be placed on unsolicited commercial electronic mail. The ACLU opposes this provision because it is a form of prior restraint and ""compelled speech.""[4] 

A prior restraint consists of a government regulation that restricts or interferes with speech prior to its utterance. The Supreme Court has said that ""[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity."" Bantam Books v. Sullivan, 372 U.S. 58, 70 (1963). 

Fundamental to the issue of labels or identifiers is that the First Amendment's protections include ""both the right to speak freely and the right to refrain from speaking at all."" Wooley v. Maynard, 430 U.S. 705, 714 (1977). It is a ""fundamental principle that the coerced publication of particular views, as much as their suppression, violates the freedom of speech."" Herbert v. Lando, 441 U.S. 153, 178 n.1 (1979)(Powell, J., concurring).  The protections of the First Amendment encompass ""the decision of both what to say and what not to say."" Riley v. National Federation of the Blind, 487 U.S. 781, 797 (1988).  ""The First Amendment mandates that we presume that speakers, not the government, know best both what they want to say and how to say it."" Id. at 790-791. By requiring an identifier on certain electronic mail, this bill forces senders to say something they may not wish to say, which is constitutionally suspect.

As noted above, a regulation of commercial speech must be narrowly tailored to achieve the asserted substantial government interest. Where the harm comes from the sheer volume, and inability to opt-out from receiving any further messages, this provision is not narrowly tailored to achieve the asserted substantial interest. 

The bill prohibits constitutionally protected anonymous speech. 

S. 877 requires that unsolicited commercial email include a ""valid physical street address of the sender."" It is unclear what the ""significant"" government interest is that is being addressed by this provision. However, it is clear that this provision undermines the right to anonymous speech on the Internet.

Additionally, requiring header information that is not ""false or misleading"" further devalues this right,[5] as the provision essentially requires accurate headers, regardless of the intent of the sender.[6] 

Anonymous speech is protected under the First Amendment. Talley v. California, 362 U.S. 60 (1960); McIntyre v. Ohio Elections Commission, 115 S.Ct. 1511 (1995).        This right of anonymity has also been applied to speech over the Internet, American Civil Liberties Union v. Miller, 977 F.Supp. 1228 (N.D. Ga. 1997) and American Civil Liberties Union v. Johnson, 4 F.Supp.2d 1029 (D.N.M. 1998), and even to commercial speech. NLRB v. Midland Daily News, 151 F.3d 472 (6th Cir. 1998).[7]  By requiring accurate header information and inclusion of a valid physical street address, the bill in one fell swoop destroys anonymous commercial communication on the Internet. 

A similar provision[8] was challenged in American Civil Liberties Union v. Miller, supra., and a preliminary injunction was granted.

 [B]ecause ""the identity of the speaker is no different from other components of [a] document's contents that the author is free to include or exclude,"" McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 340-42, 115 S.Ct. 1511, 1516, 131 L.Ed.2d 426 (1995), the statute's prohibition of internet transmissions which ""falsely identify"" the sender constitutes a presumptively invalid content-based restriction. See R.A.V. v. St. Paul, 505 U.S. 377, 382, 112 S.Ct. 2538, 2542-43, 120 L.Ed.2d 305 (1992). The state may impose content-based restrictions only to promote a ""compelling state interest"" and only through use of ""the least restrictive means to further the articulated interest."" Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 126, 109 S.Ct. 2829, 2836, 106 L.Ed.2d 93 (1989).

The court noted that fraud prevention was the asserted state interest, but the statute was not narrowly drawn to achieve that end. 

[B]y its plain language the criminal prohibition applies regardless of whether a speaker has any intent to deceive or whether deception actually occurs. Therefore, it could apply to a wide range of transmissions which ""falsely identify"" the sender, but are not ""fraudulent"" within the specific meaning of the criminal code. [Emphasis added.]

The court found that the ACLU was likely to prevail upon its claim of overbreadth, because the statute swept protected activity within its proscription. Specifically, the act prohibited ""such protected speech as the use of false identification to avoid social ostracism, to prevent discrimination and harassment, and to protect privacy. . .""[9]

S. 877 suffers from the same infirmities. With no compelling justification, it prohibits anonymous speech by requiring a valid physical postal address, and would seem to punish anonymous speech even where there is no intent to deceive regarding the offer or information transmitted.  

The bill seems to implicitly assume there is no legitimate reason to falsify the header information accompanying commercial email, which ignores reality. Businesses may have a variety of legitimate reasons to prefer remaining anonymous in the emails they distribute. In NLRB v. Midland Daily News, supra., the court upheld the right of the business to advertise anonymously for a job position to avoid being inundated with phone calls and walk-ins.  A business may also wish to test the waters for interest in a particular product, but not dilute its own name or set up a subsidiary in case the product proves unsuccessful. Similarly, a business or individual that provides goods or services that are either controversial or socially awkward might prefer those not to be linked to their name. For example, a business expanding into products associated with aging, such as ways to treat or adapt to incontinence, hair replacement, or varicose veins, may wish to avoid the brand stigma that has attached to the producer of ""Depends."" A for-profit medical clinic might try to launch a campaign to promote organ donation in the community, but fear that religious and other groups opposed to transplant procedures would embark on a smear campaign - or themselves ""slam"" the clinic's server with multiple hostile e-mails - if it attaches its name and return address. An independent book publisher or distributor in a conservative region might wish to promote books about Islam in order to dispel myths about the religion, but fear a backlash if its name is associated with that effort. Likewise, many self-published books are offered anonymously. This bill would limit one major avenue of advertisement for such books.

The prohibition against deceptive subject headings appears to be superfluous.

Section 5(a)(2) of S. 877 prohibits deceptive subject headings, using language from the Federal Trade Commission in its October 14, 1983 Policy Statement on Deception. (See http://www.ftc.gov/bcp/policystmt/ad-decept.htm) Since the FTC can already pursue deceptive advertising under the Federal Trade Commission Act, it is unclear why this provision in the bill is necessary. The FTC already pursues spammers who engage in deceptive advertising.

In requiring reports, the bill ignores the effects on privacy and civil liberties.

In Section 10 of S. 877, a report is required from the Federal Trade Commission  ""providing a detailed analysis of the effectiveness and enforcement of the provisions of this Act and the need (if any) for the Congress to modify such provisions.""  Nowhere in the list of ""required analysis"" is mention made of the effect on privacy and civil liberties. Where a bill so clearly has implications for privacy and First Amendment protections, this is an egregious oversight.

Conclusion

S. 877 will chill constitutionally protected speech, as well as prohibit anonymous speech protected under the Constitution. The bill is not narrowly tailored to achieve the asserted governmental interests. For all of these reasons, we urge you to vote against S. 877 when the bill comes to the floor.

Sincerely,
Laura W. Murphy
Director  

Marvin J. Johnson
Legislative Counsel

 


 

[1] S. 877 specifically states: ""The inclusion of a reference to a commercial ent

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