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A green light, but will congress see it?

By Scott Bradner

In March 2002 a U.S. district court in Missouri ruled that the constitutional right of spammers to send commercial junk to your FAX machine outweighed your right to not have to spend your own money to pay to receive their messages. That decision made it look like there was no chance for any U.S. federal legislation to control spam email since the same issues are at stake there. But the eighth circuit Court of Appeals has just reversed that ruling and the logic of their decision seems like it also would apply to a law controlling unsolicited email.

In this case American Blast FAX, Inc., a spam FAX company, claimed that the federal Telephone Consumer Protection Act (TCPA) was unconstitutional because it limited the First Amendment right of free speech for advertisers. The lower case accepted this argument and, in effect, tossed out the TCPA. The government appealed and, even though American Blast was supported by Wal-Mart, the appeals court sided with the government.

The Congressional supporters of the right for the spam industry to send unlimited amounts of spam email, now in the billions of messages a day, have been using the Constitution as an excuse of why they do not act for quite a while, now that will be harder.

The appeals court decision (http://www.ca8.uscourts.gov/tmp/022705.html?tag=nl) focused on what is known as the "Central Hudson" test to determine if the law was constitutional . The Central Hudson test, named after a 1980 U.S. Supreme Court case, sets up three hurdles that a law regulating truthful commercial advertising must pass to be OK. The first test is "whether the asserted governmental interest is substantial", if so then the second test is "whether the regulation directly advances the governmental interest", if so then "whether it is not more extensive than is necessary."

The "asserted governmental interest" in the case of FAXes is preventing "cost shifting" from the advertiser to the user. The court found that the cost shifting in the case of FAXes was more than a hundred dollars per year per FAX machine. The total cost of this is very small potatoes in comparison to spam email, which is estimated to currently cost U.S. businesses $9 billion and European businesses $2.5 billion per year plus untold hours wasted by individuals.

I expect that a well crafted anti-spam email bill would be able to pass the other two tests even though any U.S.-based restriction will be at best a partial solution. But the court's decision specifically says that a partial solution is OK. A bill that targets not only U.S.-based spammers but also any company doing business in the U.S. that is the beneficiary of spam would still be only a partial solution but would help a lot.

Congress now has a green light to seriously consider anti-spam legislation but, considering their predilection to support the folks that donate money to their campaigns, I'm not holding my breath for a meaningful bill.

disclaimer: Harvard trained lawyers could help draft such legislation and to help challenge it so, if asked, the university might be neutral, but I did not ask.