Opt-In Junk Fax Law Survives Court Challenge

An anonymous reader writes "From Privacy.org: The U.S. Court of Appeals for the 8th Circuit has upheld (PDF) the Telephone Consumer Protection Act (TCPA) of 1991 against a First Amendment challenge. In the case, Missouri v. American Blast Fax, junk fax company Fax.com and Wal-Mart argued that the law violated the First Amendment because it imposes fines upon companies that send fax advertisements without the consent of the recipient. The case is the latest court victory for opt-in privacy laws." I hope the same logic is applied to spam.

Comments

Sort of.

[www.sorehands.com]

In Ferguson v. Friendfinders the issue was not free speech, but the application dormant interstate commerce clause of the constitution. This is the prohibition of the state putting a heavier duty on an out of state reisdent to do business than in an state resident. In the Washington laws' cases, the court's decision was that the state was permitted the labeling of SPAM. That it was labeling and identification, not stopping and to stop on a request.

This is different from saying, you can't send SPAM prior to permission being given.

Nothing stands in the way of a federal ban on spam

[D4C5CE]

So the courts hold that outlawing spam is perfectly compatible with both the Commerce Clause and the First Amendment (and anyway, bulk mail is not really speech, but noise!) - now it's time to adopt something like the solution Europe enacted when it finally came to similar conclusions:

Directive 2002/58/EC (excerpt)

Unlike Europe, the U.S. of course do not even need to leave room for implementation, so with less Legalese than below, a hefty fine for spammers and punitive damages payable to the spammed can be defined right in the federal anti-spam statute. If it's balanced like the European solution (still permitting legitimate eMail within a narrowly defined business relationship, but outlawing all of the abusive practices that operate at the recipients' expense), it will easily pass constitutional muster, and help America get rid of junk mail once and for all (probably even within just a few weeks).

(40) Safeguards should be provided for subscribers against intrusion of their privacy by unsolicited communications for direct marketing purposes in particular by means of automated calling machines, telefaxes, and e-mails, including SMS messages. These forms of unsolicited commercial communications may on the one hand be relatively easy and cheap to send and on the other may impose a burden and/or cost on the recipient. Moreover, in some cases their volume may also cause difficulties for electronic communications networks and terminal equipment. For such forms of unsolicited communications for direct marketing, it is justified to require that prior explicit consent of the recipients is obtained before such communications are addressed to them. The single market requires a harmonised approach to ensure simple, Community-wide rules for businesses and users.
(41) Within the context of an existing customer relationship, it is reasonable to allow the use of electronic contact details for the offering of similar products or services, but only by the same company that has obtained the electronic contact details in accordance with Directive 95/46/EC [i.e. the General Data Protection Directive]. When electronic contact details are obtained, the customer should be informed about their further use for direct marketing in a clear and distinct manner, and be given the opportunity to refuse such usage. This opportunity should continue to be offered with each subsequent direct marketing message, free of charge, except for any costs for the transmission of this refusal.
(42) Other forms of direct marketing that are more costly for the sender and impose no financial costs on subscribers and users, such as person-to-person voice telephony calls, may justify the maintenance of a system giving subscribers or users the possibility to indicate that they do not want to receive such calls. Nevertheless, in order not to decrease existing levels of privacy protection, Member States should be entitled to uphold national systems, only allowing such calls to subscribers and users who have given their prior consent.
(43) To facilitate effective enforcement of Community rules on unsolicited messages for direct marketing, it is necessary to prohibit the use of false identities or false return addresses or numbers while sending unsolicited messages for direct marketing purposes.

(47) Where the rights of the users and subscribers are not respected, national legislation should provide for judicial remedies. Penalties should be imposed on any person, whether governed by private or public law, who fails to comply with the national measures taken under this Directive.

Article 13
Unsolicited communications
1. The use of automated calling systems without human intervention (automatic calling

US Code 47, spam, and the fax, ma'am

[Anonymous Coward]

Not long ago I had trouble stopping spam from one particular spammer. I finally sent them an email letting them know I would begin charging them $500.00 for every piece of spam I received from them, and included the statement below. Haven't seen a thing from them since. I borrowed this strategy from a page at www.snark.com

United States Code Title 47, Section 227(a)(2)(B) states that a computer, modem, and/or printer meets the definition of a telephone fax machine. Section 227(b)(1)(C) states that it is unlawful to send any unsolicited advertisement to such equipment. Section 227(b)(3)(C) states that a violation of the aforementioned Section is punishable by action to recover actual monetary loss, or $500, whichever is greater, for each violation.