Senator Says Spammers Have First-Amendment Rights

Senator Ron Wyden (D-OR), while joining Rep. Gephardt (D-MO) in a discussion of how Democrats are the "guardians of the New Economy," noted that opt-out is better, because it gives companies their first ammendment right to contact you. I agree, companies do have a right to contact me. But they should be required to pay "postage" for that right. I think spammers should pay a penny per k to both me and my ISP. A 5k spam would cost a dime. Still less then a stamp, but it'd make me a few hundred bucks a month for my time, bandwidth, and hardware costs. Spammers take away my property and happiness. Isn't that a right too? And opt-out is a joke. I've opted out of countless things, but I still get a hundred+ spams a day. Thank god for mail filters.

Comments

I like this

[PD]

I guess it must be legal for me to call the senator at his house 400 times a day. IT'S MY RIGHT.

I guess that I can knock on his front door 400 times a day too. I just want to sell him some subscriptions to a pr0n site.

We need more senators like this, expanding the rights of Americans everywhere. Anyone know his address? I want to personally deliver a dump truck of spam and manure to his home address. That's my right too.

Re:I like this

[selectspec]

Spam search engines, please take these two email addresses and imortalize them in your hallowed database of infamy --> gephardt@mail.house.gov gephardt@mail.house.gov

We need technical measures, not laws, for spam

[mistered]

I think these senators don't comprehend the reality with spam; that is, 99% of it has false origin information and has an opt-out scheme that doesn't work or only results in more spam.

However, I don't believe in making laws against spam. They'll always be outdated and interfere with legimate uses of email, since it can be very hard to define exactly what is spam. (Someone taking my address from a newsgroup posting and trying to sell me printer toner is spamming, but how about an email from a company I bought something from a year ago?)

Adam Back has an interesting proposal called Hash Cash. The idea is that if you want to send me an email, you have to burn some CPU cycles to compute a partial hash collision. I choose how many bits are required. Friends and family can send me email for free. I'll charge a few bits for the store I shooped at last week, and even more for people I don't know. If you're in ORBS or MAPS, perhaps I'll charge even more.

Re:It's simple

[ebh]

Your right to free speech does not obligate me to provide you a forum in which to exercise that right.

rights

[www.sorehands.com]

First ammendment rights are not absolute. You cannot force me to listen to your speech. You don't have the right to charge me to listen to your message. You don't have the right to use my equiptment to show me your message.

Email is a push technology, not a pull technology. If someone posts it on Yahoo, or banner ads, you are making a request for it. If they stuff it in your in-box, then you have not requested it on your equiptment. This pop-up/under ads are questionable.

Re:Spam & Radio Buttons

[IronChef]

[WARNING: This post may be excessively cynical.]

Really, what I am waiting for is ISP-approved spam. If the right to send spam is legally upheld, I think this is what awaits us in the future:

- Major ISPs set up "commercial email facilitation services."

- Spammer contacts the ISP. Spammer signs up for the service, and for $0.0X per email address the ISP guarantees delivery to the end user. How many users does home.com have? Or Earthlink?

- ISP makes a bundle.

- We all start getting 50 approved spams every day (the ISP would be smart enough not to redistribute pr0n spam)

- ISP rewrites the TOS so you can't complain about it or opt out.

- ISP monkeys with subject and sender headers to defeat mail filters.

- ISP defends their actions by claiming that spam was costing them $X million a year and this is the only way they can recover costs.

Obnoxious? Yes. But with the huge money to be made I think it's only a matter of time before things go this route. Non-spamming ISPs will become rare... only small ISPs will want to refuse the income, because their small user base won't make it worth backlash. But as more and more small ISPs get bought out or go under, there will be fewer and fewer places to run...

There are some legal issues...

[taustin]

... in the history of Title 47, Section 227 of the US Code (the anti-fax spam law). The legal issues are nearly identical - the anti-fax law prohibited unsolicited faxes selling things because they shift the cost of unwelcome advertising to an unwilling recipient. The cast that tested this that I'm aware of is Destination Ventures, Ltd. v. FCC, 46 F.3d 54 (9th Cir. 1995), which addressed the constitutionality of 42 227 under the 1st Amendment. It noted, specifically, that under prevailing Supreme Court case law at the time (and it hasn't changed substantially), such restrictions must be very specific - in this case, unsolicited faxes advertising goods or services - and must be the only way of accomplishing the public good the law is intended to accomplish. In particular, it noted that unsolicited faxes not advertising commercial services, such as political messages, were protected by the 1st Amendment, even if they cost an unwilling recipient money. I believe the principal is that if you make a fax machine (or email server) readily available to the general public, there is some responsibility to accept whatever gets sent to it - except for some very specific exceptions..

In any event, it seems likely the same legal thinking will apply to any anti-spam law. Since most email spam is, in fact, commercial ads, that would appear to be something that can be banned. Chain letters (that are not other wise illegal, like Ponzi scams), political messages, even ones asking for donations, and many other kinds of email are going to be protected, in the end. Or so it looks to me.

Advertising is NOT protected speech

[Philbert Desenex]

Luckily, even illustrious personages like U.S. Senators can make wrong statements. Since email spam is advertising, it is not protected speech,and therefore not covered by the U.S. Constitution's First Amendment.

In fact, the U.S. has recognized over the years that advertising must be controlled - thus we U.S. citizens are protected by "Truth in Advertising" laws.

The real question is who bought off this particular U.S. senator? The Direct Marketing Association (DMA) has its hooks into a lot of state representatives. For instance, here in Colorado, someone proposed a bill to make scumsucking telemarketers use a state "opt-out" list. Colorado citizens could register phone numbers in the opt-out list, and scumsucking telemarketers would be required to *not* call those phone numbers, under penalty of law.

The president of the Colorado State Senate is an ex-DMA-lobbyist, so he used parliamentary procedure to table the bill - it essentially wouldn't even be voted on. A mass outpouring of outrage against evil telemarketers got it back on the table, and it passed.

There can be no compromise on email spam - email spam is theft, and must be eliminated. Email spammers are theives and must be punished withing the limits of the law.

Re:Spam & Radio Buttons

[Compulawyer]

It is NOT an advertiser's legal right to contact you. Foremost among our rights is the right to be left alone.

The problem with spam that most people (especially lawmakers) just don't get is that spam is VERY different from traditional snail-mail advertising. It ends up shifting the costs of advertising to those RECEIVING the advertising and to those in the chain of distribution (ISPs). These two aspects are significant. In fact, this cost-shifting was one of the primary rationales behind outlawing unsolicited commercial facsimile transmissions (remember fax machines?). This law is 47 USC sec. 227 - $500 fine per violation.

So I ask you, why should advertisers be allowed to make the public pay for their advertising simply because it is possible to advertise electronically? Remember: The corollary to someone's 1st Amendment right to speak is someone else's right to not be subjected to the speech.

Re:Spam & Radio Buttons

[ryanwright]

It is their legal right to contact you

It is NOT their legal right to send me unsolicited links to pornography and a graphic description of exactly what I'll find via said link, which I get on a daily basis. They have no idea whether I'm an adult or not. What happens when my 4 year old daughter is 10, gets her own email address, and receives this crap? I'll tell you what happens: I'll put the SOBs in jail for solicitation of a minor - assuming I can track them down.

I wonder if someone could get away with suing them for sexual harassment? Hell, it works everywhere else. Tell a female coworker she looks nice in a dress, or tell some dirty joke within earshot of the wrong person, and you could wind up in court. I'd say links to "young teen sluts waiting to suck you dry" constitutes sexual harassment, wouldn't you?

As for other spam: Imagine if companies sent you advertisements via COD, only you're forced to pay. Mail man shows up at the door: "Here you go sir. 20 more ads. Charges are $5, we'll deduct it from your checking account whether you like it or not." Imagine if the palm reader at the 900 number was able to call YOU, and if you answer the phone, you're automatically charged $10. In reality, this is exactly what spammers do to you. You're paying (Internet access charges) for them to spam you. There are laws against this in the real world.