The smart way to provide the ultimate filter.
A civil war has broken out in cyberspace over junk email - the uninvited online sales pitches commonly called spam, but also known by the more bureaucratically correct name of unsolicited commercial email, or UCE. As the volume of spam pouring into in-boxes has grown, tensions between those who believe legislation is needed to curb the UCE nuisance and those who think that the problem can be solved technologically have reached the flame stage.
Only the US government's intervention could fan those flames higher. And this spring, Congress jumped on the issue from three directions.
The Unsolicited Commercial Electronic Mail Choice Act of 1997 (S 771), authored by Senator Frank Murkowski (R-Alaska), is a classic case of good intentions gone bad. Murkowski's heart is in the right place, but his bill puts a band-aid on the UCE problem while also setting a digital trap in the form of ISP liability.
S 771 would require all junk email to start the subject line with the word advertisement. The idea is to allow consumers to "request service providers to screen out all such messages," Murkowski says, but ISPs would be on the hook to take action within 48 hours of a request to end further junk email transmission; penalties for violat-ing the law would range from US$5,000 to $11,000 per incident. The problem is that making local ISPs liable for blocking junk email is misguided - they would be wrongly held accountable if spammers circumvent blocking filters.
The second antispam bill, sponsored by Representative Chris Smith (R-New Jersey), would amend the Telephone Consumer Protection Act of 1991, which outlaws junk faxes, to include junk email. Smith clearly wants to be on the side of the angels here - he even dubbed his bill, HR 1748, the Netizen Protection Act of 1997. Smith's bill treats UCE like a junk fax: it is banned outright, unless the sender has a previous relationship with the recipient or the latter has requested the material. Penalties for violating the law range from $500 to $1,500 per incident.
At first glance, extending the junk fax ban to email seems a safe bet. But even though a federal court has declared that banning junk faxes does not violate the First Amendment, the ban on junk faxes is a broad, content-based speech restriction originally designed for use with telephone networks. The Internet, on the other hand, is a far more flexible mode of communication. Instead of banning entire categories of speech (such as unsolicited commercial email, or "indecent" material, in the CDA's case), the Net empowers users to choose the kinds of communication they want to receive.
The third spam-eradication proposal circulating on Capitol Hill addresses the latent content-regulation land mine buried beneath the Smith bill's surface. The Electronic Mailbox Protection Act of 1997 (S875), authored by Senator Robert Torricelli (D New Jersey), tackles the spam issue without running afoul of potholes such as ISP liability, content labeling, free speech, and loss of anonymity.
Torricelli's bill would make it illegal to send email from false From addresses and outlaws the practice of registering new domains to avoid filter detection. In addition, the bill would require bulk emailers to honor "unsubscribe" requests and would prohibit American companies from moving their junk email operations offshore to escape the reach of US law. The bill includes civil penalties of up to $5,000 per violation and allows ISPs and consumers to collect $500 per message from rogue spammers.
Cyberlibertarians insist no legislation is necessary to deal with spam, but there's nothing evil about allowing Congress to step in and address the problem - as long as it's Torricelli's Internet-friendly bill that prevails. Will his proposal stop all junk email? Probably not. But establishing some consistent ground rules will enable Internet users and vigilant ISPs to slow the torrent of junk email down to a trickle - and not a moment too soon.