The Constitutional Issues of Spam-Mail

-- TaehyoungKwon - 27 Apr 2008

I. Introduction

In the society of information, spam-mail, also known as "bulk e-mail" or "junk e-mail, has long been one of the troublesome problems. Spam-mail can be defined as a subset of spam that involves nearly identical messages sent to numerous recipients by e-mail. A common synonym for spam is unsolicited bulk e-mail(“UBE”). Definitions of spam usually include the aspects that email is unsolicited and sent in bulk. "UCE" refers specifically to "unsolicited commercial e-mail."

At present, most of the UCE messages are about commercial things although there are also many varieties of noncommercial UCE messages such as religious messages, political advertisements, virus hoaxes, hate e-mail and charitable fundraising solicitations. Almost all the UCE messages are sent 'in bulk.' So, the distinction between UCE and UBE could be blurred. Sending and receiving spam-mails as well as its regulations are related to constitutional law issues. Spam-mail stuffs can intrude the constitutional rights.

II. Freedom of Speech in the First Amendment.

The First Amendment guarantees freedom of speech and of the press, including the expression to the people. E-mail messages could be protected by freedom of expression in that e-mail is one of means where speech would be delivered. Even if the e-mail was a sort of spam mail, it also could be protected by the freedom of speech, specifically by the freedom of commercial speech. Commercial speech such as advertising material could be protected by freedom of expression because it is also the transmission of thought, knowledge and information to many and unspecified persons. However, its protection can be different from the non-commercial speech to some extent. “We have not discarded the common-sense distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech. To require a parity of constitutional protection for commercial and noncommercial speech alike could invite dilution, simply by a leveling process, of the force of the Amendment's guarantee with respect to the latter kind of speech. Rather than subject the First Amendment to such a devitalization, we instead have afforded commercial speech a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values, while allowing modes of regulation that might be impermissible in the realm of noncommercial expression.” Ohralik v. Ohio State Bar Ass'n, 436 U.S. 455,456, 98 S.Ct. 1918 (U.S.Ohio,1978). Thus, the extreme regulation or prohibition of spam-mail in an extreme way could trigger the violation of constitutional freedom of speech. Abandoning the opt-out method and instead adopting opt-in method may guarantee the recipient's right of choice and protect netizens from spam-mail. At the other hand, if the opt-in method is adopted as a general means regulating spam-mail, the possibility of violating freedom of speech gets higher. However, as many of the constitutional rights could be restricted when they conflict with other constitutional rights and governmental interests, the freedom of expression protecting the merchant's spam-mail advertisement has also limitations regarding the privacy right of the recipients and ISP(Internet Service Provider)'s property rights, and the governmental interests to protect minors from harmful information.

III. The right of Privacy.

The U. S. Constitution contains no express right to privacy. However, the privacy of beliefs in 1st Amendment, privacy of the home against demands that it be used to house soldiers in 3rd Amendment, privacy of the person and possessions as against unreasonable searches in 4th Amendment, and the 5th Amendment's privilege against self-incrimination provides protection for the privacy of personal information. Indiscriminately transmitted spam-mails could bring about mental damages to recipients who do not want that kind of stuffs. The e-mail mailbox is the private area of the recipient. Thus, the spam-mails sending into the mailbox without the recipient's explicit permission could constitute a trespass to personal property. In CompuServe Inc. v. Cyber Promotion case - CompuServe Inc. v. Cyber Promotion 962 F. Supp.1015 (S.D.Ohio,1997.1997)- the Court made judgment for the plaintiff, CompuServe(ISP), and gave injunctive relief preventing Cyber Promotion from using CompuServe's system in sending spam-mails. Therefore, they might infringe upon the recipient’s right of privacy.

• I think Cyber Promotion is dead under Intel v. Hamidi, below. Because it is so easy for end users to filter spam--easier than turning one's head away from an offensive publication seen on the street--I don't see why we would consider limiting the first amendment right of the speaker in order to confine the effect of the speech. But, in any event, we have the federal CAN-SPAM ACT, Pub. L. No. 108-187, 117 Stat. 2699 (2003) (codified at 15 U.S.C. �� 7701-7713 and 18 U.S.C. � 1037), which is implemented by rules from the Federal Trade Commission, which would have been relevant here and which you don't discuss.

IV. The Property Right.

As the Amendment 5 guarantees, no one shall be deprived of property without due process of law. The transmission of a large quantity of spam-mails could hinder the normal functioning of the server dealing with the spam-mails. If large quantity of e-mails is transmitted at the same time, excessive loads will be carried into ISP's server and hinder its normal functioning thus cause a hitch or lag. The server is ISP's own property, so this could constitute the trespass on the property right of the ISP.

• The idea isn't of a taking of property under the fifth amendment (which only involves government takings) but trespass. The notion of undesired email as a trespass on the server is the subject of the controversial decision in Intel Corp. v. Hamidi, 30 Cal. 4th 1342, 71 P.3d 296 (2003). The California Supreme Court held that unwanted email addressed to Intel's employees by a disgruntled former employee was not trespass to chattels, namely the company's email servers. This isn't exactly the same case as spam and a commercial ISP, but I don't think any court in the US is going to make the other decision, and as time goes by I think that's more and more certain all the time.

V. Equal protection of the law

Adopting the opt-in method in spam-mail regulation could cause the problem of violating equal protection of the law. The Equal Protection Clause of the 14th amendment of the U.S. Constitution prohibits states from denying any person within its jurisdiction the equal protection of the laws. Applying opt-in method only to the e-mail information, and not requiring the recipient’s pre-approval on the advertising information transmitted through press and mass-media could be against the Equal Protection of Law Clause in that it could discriminate against e-mail message senders with information provider through the press and mass-media.

VI. The desirable way of regulation

As stated above, spam mail and its regulation might cause the problems concerning constitutional rights. Some suggest technical actions against spam-mails such as filtering and blocking. However, facing the spam-mail problem with technical devices would cause additional costs and the costs will ultimately shift to the innocent internet users. The more competitive the technical arms race between spam-mailers and anti-spamers becomes, the more costs the innocent internet users should pay. Thus, the technical regulations on spam-mail are not desirable. The desirable way of legal regulation on the spam-mails should be explored in the direction achieving harmony among these constitutional rights and governmental interests. It also could be supplemented with the efforts of self-regulation by the merchants' groups themselves.

-- TaehyoungKwon - 27 Apr 2008

• Writing this essay without discussing the CAN-SPAM Act, which is what Congress actually did about spam is a major oversight on your part. The FTC's administration of the Act has been successful in driving pretty much all spamming offshore, as was expected. Which, naturally, is not much of an achievement in the global Internet. But you didn't consider that point either.