ARTS & FARCES internet

Spam is safer in Minnesota tonight, and I don’t mean the pork product. Thanks to a new law—the Internet Consumer Information Privacy and Commercial Electronic Mail Solicitation Act—spammers are legislatively free to ply their trade so long as they label their missives with “ADV” in the subject line. The bill was authored by Senator Steve Kelley (DFL-Hopkins) and co-sponsored in the House by now-Governor Tim Pawlenty. It calls for penalties of up to US$35,000 per day based on the specific part of the law a spammer violates.

Theoretically, the labeling requirement will make unsolicited commercial email much easier for users to identify and delete. Practically, the “ADV” tag will do absolutely nothing to stem the tide of spam which now accounts for up to 50% of all email.

Minnesota’s mainstream media outlets are as clueless as the state’s legislators when it comes to spam. Saint Paul Pioneer Press telecommunications and technology writer Leslie Brooks Suzukamo didn’t do his homework when he writes, “Free speech issues make it difficult, if not impossible to outlaw spam, so the best thing to do is make it obvious to users and allow them to set up automated filters that would instantly delete e-mail with the “ADV” or “ADV-ADULT” warnings.” It’s not clear from Suzukamo’s piece who the source is for that passage, but it’s shockingly clear that either the journalist or the Senator (or more likely, both) are in serious need of a clue.

First of all, regulating spam has nothing to do with the First Amendment. The First Amendment gives all of us the right to free speech, but it doesn’t guarantee a spammer the right to force anyone to listen to her. This isn’t about state censorship; it’s about spammers bearing their own advertising costs.

For some unfathomable reason, big-j Journalists covering this issue always manage to miss the fact that at least two U.S. courts—including the U.S. Supreme Court—have already ruled that First Amendment protections for commercial speech are justly limited

Here’s Federal Judge Stanley Sporkin, writing in his ruling in Turner Broadcasting v. FCC:

“[They] have come to court not because their freedom of speech is seriously threatened but because their profits are; to dress up their complaints in First Amendment garb demeans the principles for which the First Amendment stands and the protections it was designed to afford.”

And here’s Supreme Court Chief Justice Warren Burger writing for the majority in Rowan v. U.S. Post Office:

“Nothing in the Constitution compels us to listen to or to view any unwanted communication, whatever its merit…. We therefore categorically reject the argument that a vendor has the right under the Constitution or otherwise to send unwanted material into the home of another…. We repeat, the right of a mailer stops at the outer boundary of every person’s domain.”

Instead of wrapping this issue in the First Amendment, it’s time to recognize spam for what it is: criminal trespass and infringement of property rights. This was clearly established six years ago in CompuServe v. Cyber Promotions. The court in that case decisively held that spam was trespass. But we keep arguing in circles, mostly because the current political climate is hostile to anything that carries even a whiff of restricting commerce.

There is hope for resolution on the horizon. The Internet Research Task Force has convened the Anti-Spam Research Group with a specific focus on supporting “consent-based communication” at the net’s architecture level:

“This means that an individual or organization should be able to express consent or lack of consent for certain communication and have the architecture support those desires.”

Keep your fingers crossed, but don’t hold your breath.