We needn't dwell on the annoyance that broadcast and unsolicited e-mails can be. So far gone is the problem, that even the Direct Mail industry has acquiesced to the calls for legal regulation of Spam. That said, and despite my unequivocal disdain for spammers and spam, I am concerned whenever the government decides to regulate what I can and cannot say, what I may and may not publish.
In the United States, in short, we have the First Amendment. "Congress shall make no law," and "no law" should probably mean something very close to no law. How, then can we regulate the annoying spammers without imposing upon the speaker's right to speak? It is no answer to suggest that the spammer place special headers on their e-mails. Prior cases have held, properly I think, that compelled speech is as bad as no speech at all.
What then, can we do? I have a modest proposal, but one that I think should work well, should fit into the context of appropriate regulatory doctrines, but which should not impinge upon the freedom of speech and of the press.
Simply put, instead of requiring spammers to identify spam as spam, just make it unlawful for them to falsely identify spam as non-spam, and leave it to the rest of us to tag our mail as non-spam. No speech is compelled, and no truthful statements or speech is regulated. The technology is already in place to make it possible, therefore, for all of us to have the benefit of 100% lawful-spam filtering, and a cause of actions and remedies against unlawful spamming. Click "More" for the details.
The proposal
1. Make it an unfair and deceptive business practice, regulable by the FTC, to transmit, or to have transmitted on your behalf, an e-mail bearing false indicia indicating the manner by which the e-mail was distributed.
2. Further, provide a private cause of action, with minimum statutory damages and an award of attorney fees, for recipients of misrepresented spam.
3. Further, criminalize the dissemination of misrepresented spam, perhaps adding a scienter requirement (intent to misrepresent), where the spam is sent for commercial gain or where the spam is a repeat offense.
Why would this work?
Imagine that e-mail clients, by convention, added the following message to all e-mail sent:
This e-mail was not broadcast, that is to say: no e-mail that is substantially similar to this e-mail has been distributed by me, or by persons in privity with me, directly or indirectly, to more than 100 different e-mail addresses, except to persons who expressly opted to receive it and did not thereafter opt out.
Further imagine that the ISOC or appropriate other entity adopted a standard whereby some shorthand tag has a similar meaning, so that the long-winded message is unnecessary, and so that e-mail software can readily identity tagged non-broadcasts.
Under the proposed regulation, it would be an FTC violation and an actionable tort to send an e-mail (or substantially similar e-mails) to more than 100 people that included this message.
NOW, e-mail clients can simply filter for the presence of the NON-Spam message. The same result as required tagging, but instead of regulating speech or forcing speech upon the spammer, all we have done is to require them not to lie.
Those who do lie would either expose themselves to far more liability than they could benefit, and those who lie for profit or repeatedly do so will be subject to criminal responsibility. Further, the FTC could regulate this conduct under existing FTC Act remedies. Class action attorneys and the government would clean up the act of the good guys who err, and we will marginalize and significantly give disincentive to those who are just plain bad.
I am rather fond of this remedy, and believe that it can work. Moreover, I believe it can be accomplished with minimal intervention on actual First Amendment Rights, and without the creation of any new regulatory regime.