ACLU on spam (fwd)

[Lucys]

    FYI: since we have been discussing spam on scn, I thought you
         might find this interesting. Some of the proposed laws,
         include making the ISP responsible for trying to stop
         spam.


  Lucy S.                   lbs at aa.net  
  Seattle, Washington  USA

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Date: Mon, 22 Sep 1997 21:22:41 -0700 (PDT)
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Subject: ACLU on spam
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Date: Tue, 2 Sep 1997 15:51:59 GMT
From: "ACLU Cyber-Liberties Update Owner"@newmedium.com
Subject: Anti-Spam Bills in Congress

Source - ACLU Cyber-Liberties Update, Tuesday, September 2, 1997

Unsolicited e-mail advertisement, or "spam," has few fans on the
net. Court battles have been waged between service providers, such
as AOL and Compuserve, and spam advertisers, including Cyber
Promotions, over whether the thousands of  messages sent to user
e-mails can be blocked. Congress and several state legislatures
have also stepped into the debate and have introduced some bills
fraught with First Amendment problems because they ban commercial
speech altogether or are content specific.

Traditionally, commercial speech restrictions on telemarketing
calls and unsolicited fax advertisements have passed First
Amendment challenges but direct mail and door-to-door
solicitations enjoy much greater protection.  Given the Supreme
Court decision in ACLU v. Reno, on-line messages should receive
the same First Amendment protection given traditional print media,
which includes commercial mailings.  Thus, while netizens may laud
efforts to curb spam, it is unclear whether some of the
unsolicited commercial e-mail bills can pass constitutional
muster.

Even more troubling are the state spam bills which create
different rules for each state that advertisers will have to
follow.  Under some state bills, if a spam message is sent or made
available to a resident in one state, it could confer jurisdiction
over the sender and could subject them to liability if they are in
violation of local law.  A federal judge recently ruled that state
control or regulation of Internet communications violates the
Commerce Clause of the Constitution. In the decision in ALA v.
Pataki, which involved a challenge by the ACLU to a New York
Internet decency law, federal district Judge Loretta Preska
declared that states are prohibited from regulating an interstate
communication which merely passes through their borders. Judge
Preska warned of the extreme danger that state regulation would
pose to the Internet, rejecting the state's argument that the
statute would even be effective in preventing so-called
"indecency" from reaching minors.  Hence, state spam bills will
probably not withstand constitutional challenges.The decision in
ALA v. Pataki is available at
<http://www.aclu.org/court/nycdadec.html>

Below is a synopsis of the federal bills and the first state
enacted law on spam from Nevada.  The ACLU objected to an earlier,
even broader version of the Nevada law before its enactment and is
considering participating in a challenge to the law.  The Nevada
law, as enacted contains broad definitions of e-mail that may
include advertisements on web sites and other on-line forums. Full
text of the federal bills is available at
<http://www.jmls.edu/cyber/statutes/email/>

Netizens Protection Act of 1997, Introduced May 22,1997 (H.R.
1748):

Sponsored by Rep. Chris Smith (R-N.J.) would amend the Telephone
Consumer Protection Act of 1991, ("TCPA") which regulates
telemarketing and junk-faxes to include unsolicited e-mail
advertisements.  The bill would ban unsolicited e-mail and only
permit the sending of commercial messages where there is a
pre-existing relationship between the sender and recipient, or
when the recipient has requested the information.  The bill
provides for hefty penalties for violations.

Unsolicited Commercial Electronic Mail Choice Act of 1997, (S.
771):

Sponsored by Sen. Frank Murkowski (R-AL) the bill would require
senders to label content of a commercial e-mail message as an
"advertisement" and to honor recipient "opt-out" requests within
48 hours, and put the burden of blocking spam on ISPs.  Failure by
ISPs to filter out messages would result in liability and steep
penalties for providers, not spammers.

Electronic Mailbox Protection Act of 1997, introduced June 11,1997
(S.875):

Sponsored by Sen. Robert Torricelli (D-NJ) the bill would restrict
the use of false e-mail addresses or domain names to avoid
filtering by commercial advertisers.  Spammers would also be
required to honor recipient "opt-out" requests,  and violators
would be hit with civil penalties up to $5,000.

Data Privacy Act of 1997, introduced July 31, 1997 (H.R. 2368):

Sponsored by Rep. Tauzin the bill would create an industry working
group to draft voluntary guidelines with incentives for
advertisers who adopt them to: limit the collection and use, for
commercial marketing purposes, of personally identifiable
information obtained from individuals through any interactive
computer service; require unsolicited e-mail advertisers to
identify the sender, including a valid reply address; disclose
when such information is gathered; provide a consumer opt-out
provision; limit the display of social security numbers and
prohibit the commercial marketing and use of medical information.

Nevada Anti-Spam Law:  Senate Bill 13 , enacted July 8, 1997 and
goes into effect on July 1, 1998:

Under the law, transmitting commercial advertisements in the form
of e-mail may subject the sender to civil fines and provides that
a recipient may enjoin the sender from such future conduct and may
receive restitution.  The law defines an advertisement as material
that advertises for commercial purposes the availability or the
quality of real property, goods or services; or  is designed or
intended to solicit a person to purchase real property, goods or
services.  The law also imposes liability upon Internet Service
Providers since it applies to any party that causes to be
transmitted commercial mail.

The exception to the law permits sending commercial e-mail where:
(a) The person has a preexisting business or personal relationship
with the recipient; (b) The recipient has expressly consented to
receive the item or (c) The advertisement is readily identifiable
as promotional, or contains a statement providing that it is an
advertisement, and clearly and conspicuously provides:  (1) The
legal name, complete street address and electronic mail address of
the person transmitting the electronic mail; and (2) A notice that
the recipient may decline to receive additional electronic mail
that includes an advertisement from the person transmitting the
electronic mail and the procedures for declining such electronic
mail.

The full text of the Nevada law is available at
<http://www.leg.state.nv.us/97bills/SB/SB13_EN.HTM>

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