Legislation to reduce the amount of unsolicited commercial e-mail, or "spam," has been kicking around Congress for a couple of years. The most popular anti-spam bill, introduced by Rep. Heather Wilson (R-NM) and Rep. Gene Green (D-TX), even passed the House last year with only one vote against it, but died in the Senate. The Wilson-Green bill was reintroduced this year (H.R. 718) with over 100 cosponsors, and looked like it was on track to passing, again with overwhelming support. Last month, however, the House Judiciary Committee gutted the bill, killed an amendment by Rep. Adam Schiff (D-CA) that would have required identifiers on all spam, and left only a prohibition against falsifying information about the sender and a few other minor provisions.
One of those other provisions, an amendment by Rep. Melissa Hart (R-PA), has come under fire by the cyberlibertarians at the Center for Democracy and Technology (CDT). The amendment would require any spam that contained pornographic content to have a label indicating that it is pornographic, so that recipients would be able to throw it away without looking at it, or even filter it out automatically. This amendment is necessary because many pornographic spammers use subject lines for their spam designed to trick recipients into opening the e-mail, such as "Sorry I missed your call" or "Haven't heard from you in a while." By requiring a label in the subject line, recipients would know right away that the e-mail may display sexually explicit photos or language when opened. Hart's amendment is based on long-standing statutory language designed to prevent the mailing of unsolicited pornographic material through the postal mail. In expanding the law to cover electronic mail, the Judiciary Committee extended to the Internet the Congressional finding that pornographic paper mail "constitutes a serious threat to the dignity and sanctity of the American home" and "reduces the ability of responsible parents to protect their minor children from exposure to material which they as parents believe to be harmful to the normal and healthy ethical, mental, and social development of their children."
CDT views this entirely reasonable provision as a dangerous threat to the Constitution. In a report on the Judiciary Committee markup, CDT says the porn labeling amendment "creates the threat of forced speech and stigmatizes potentially beneficial and lawful, though adult, speech." CDT also feels that "forced speech ... is as offensive to the Constitution as forced silence." Leaving aside CDT's notion that pornographic spam could be "beneficial," CDT is making a mistake common to cyberlibertarians: assuming that Internet users are entitled to more freedom just because they're on the Internet. (This is the same reasoning that leads Napster users to think they're entitled to download music without paying for it.)
The fact that restrictions on sending physical mail with sexual content pass constitutional muster does not matter to cyberlibertarians, because they feel that the Internet is special. CDT's report says so explicitly: "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." But why shouldn't it be? The principle is the same: mail, both physical and electronic, is delivered to the recipient (unlike Web pages, which the user must seek out). Recipients of unsought and unsolicited mail should be given fair warning and should not be forced or tricked into viewing pornographic material that is delivered to them, be it physically or electronically. The fact that the Postal Service has a monopoly on delivering letter mail, and is therefore "highly regulated in many respects," does not change that principle.
CDT cites the 1997 Reno v. ACLU decision, in which the Supreme Court struck down the Communications Decency Act (CDA), as evidence of their contention that "the Internet is entitled to the highest form of First Amendment protection." This is an "apples and oranges" comparison. The Supreme Court struck down the CDA because it was too broad and had the effect of prohibiting speech in cyberspace instead of taking advantage of other, less intrusive methods, namely filters. But without a clear label for pornographic content, e-mail filters are virtually useless, as CDT stated in a report to the Federal Trade Commission in 1998. Unless spammers "cooperate" by labeling their pornographic spam, it is impossible to set up a filter that doesn't risk filtering out legitimate e-mail from friends and family. So far, pornographic spammers haven't been very willing to "cooperate," which is why a labeling requirement is necessary. The Hart amendment doesn't criminalize or prohibit any speech, it merely requires that spammers give recipients the tools they need to make informed decisions about whether to view their spam.
What should upset CDT, and all Internet users, is the Judiciary Committee's refusal to require all unsolicited commercial e-mail to also contain the characters "ADV:" in the subject line to indicate that the e-mail is advertising. The amendment, proposed by Rep. Schiff, would be a silver bullet to the spam problem. Internet users could automatically eliminate all unwanted spam from their inboxes, and Internet Service Providers could offer automatic filtering to their consumers, greatly reducing the costs of spam (which, unlike postal mail, are borne by the recipient). Schiff's amendment would apply only to commercial spam, not to political e-mails or to the jokes that individuals forward to everyone in their address book. (A judge struck down a similar law in California not because of free speech issues, but because it is up to the federal government to pass such a law, not the states.)
In protesting mandatory labeling of pornographic spam, CDT says that the Hart amendment "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." The Schiff amendment to label all spam meets every point of the CDT test: it applies to all commercial e-mail, regardless of content, and the determination of whether to require a label is objective: if an e-mail is subject to the false header provision, it is subject to the label provision. Yet CDT is not complaining that the Schiff amendment was voted down by the same committee that approved the Hart amendment.
Rep. Schiff is considering introducing his spam notification requirement (which the Progressive Policy Institute supported in our report "How to Can Spam") as stand-alone legislation. If the cyberlibertarians believe that that the "forced speech" of accurate header information is constitutional because it applies to all spam, we expect they will throw their support behind Schiff's proposal. Without a labeling requirement, Internet users will continue to be force-fed spam for years to come.
