As the internet grows, so does the amount of unsolicited or "junk" e-mail that we are forced to sort through on a daily basis. The problem has cost U.S. businesses billions, created major headaches for ISPs, and annoyed private users; however, as legislators struggle to regulate this rapidly increasing problem, the first amendment may get in the way.
If you own an e-mail account, you know what spam is. You have also probably noticed that the amount of spam (also known as unsolicited e-mail) sent to your private accounts is rising at exponential rates. Most spam is commercial advertising, often of dubious quality, and is in some ways analogous to "junk mail" you would receive through the postal system. Frequently sent in bulk, spam forces unwanted messages on millions of Internet users who might otherwise have chosen not to receive them. Conservative estimates show that approximately 15 percent of Internet traffic consists of unsolicited e-mail; while AOL reports that up to 30 percent of its daily traffic is due to unsolicited e-mail. This continuously escalating problem has sparked serious concerns for the major Internet Service Providers (ISPs), serious annoyance for the average internet user, and serious constitutional questions for legislators.
In response to mounting pressure from anti-spam activists, legislatures at the State and Federal level have introduced bills that would impose civil and criminal sanctions for a variety of activities related to the sending of unsolicited e-mail. To date, Congress has discussed proposed anti-spam legislation with little agreement; however, about 26 states have passed anti-spam laws. The State legislation has been largely limited to requiring that senders of unsolicited e-mail identify themselves clearly and provide information on how a recipient can effectively remove themselves from the sender's mailing list.
However, legislators are treading on thin constitutional ice because the expanding spam regulations may run afoul of the first amendment. Most anti-spam laws are justified on the grounds of a substantial government interest based on (1) the costs to ISPs and U.S. businesses and (2) the recipient's right to decline to receive spam e-mail. However, the right to free expression (even unpopular expression) is protected by the first amendment. The current anti-spam restrictions on free speech can be grouped into content-based and non-content-based restrictions. The content-based restrictions, such as requiring that senders of unsolicited e-mail identify themselves clearly and provide a method for recipients to remove themselves from the list, have been attacked as a prior restraint on speech because they are usually enforced by means of judicial injunction. These laws may survive constitutional scrutiny if spam is labeled commercial speech because limited regulation of commercial speech is permissible (the regulations need only be no more extensive than necessary to meet a substantial government interest). However, since spam is not necessarily commercial, it is likely that non-commercial unsolicited e-mail could also fall within the scope of the proposed regulations. Once the regulations are applied to non-commercial speech, they must survive strict constitutional scrutiny (be narrowly tailored to meet a compelling government interest). Since some non-commercial messages would be proscribed while others would escape censorship based on the government's interpretation of commercial speech, the restrictions are arguably overbroad and not narrowly tailored, and therefore, in violation of the first amendment.
Perhaps an even more compelling argument against the regulation of unsolicited e-mail is that adequate responses to the problem of spamming already exist, making the restrictions unnecessary. E-mail users currently have the ability to affirmatively reject unwanted spam without government regulation through the use of free filter software. Furthermore, major ISPs such as MSN and AOL are constantly developing new and improved filter technology to block spam before it enters their systems.
Ultimately, it seems that the question will be one left for Congress, and perhaps the Supreme Court. However, even with increasing legislative and judicial action against spam, most critics seem to believe that the government and private industry will be limited in their ability to effectively regulate unsolicited e-mail. Therefore, it seems likely that new technology and individual private users will be most effective in addressing the problems posed by spam e-mail.
