Invasion of privacy v. commercial speech: regulation of spam with a comparative constitutional point of view.

• Author: Huh, Soon Chul

1. INTRODUCTION

   We live in a flood of unsolicited commercial e-mail, or "spam." (1) The development of the Internet, "an international network of interconnected computers," (2) brings us "electronic mail," (3) which is one of the most powerful and important communicative tools we have ever had in our history. E-mail, like other methods of communication, enhances and reinforces the freedom of speech, which is one of the quintessential values in a free democratic society. Furthermore, it may be a very easy, low-cost, and efficient method for a small shop to advertise its commodities.

   However, this very cheap and convenient method, which furthers the free exchange of information and ideas in cyberspace, also delivers us daily messages that we have not solicited. Most of the spam e-mails we receive are allegedly obscene materials or commercial solicitations. (4) It is true that trashing and deleting unsolicited spam consumes our precious time and annoys us. Furthermore, spam also inflicts harm on Internet service providers (ISPs) by consuming a great deal of memory space and hindering the traffic of data. (5)

   According to an official report, each South Korean (Korean) "uses 3 e-mail accounts on average, and each e-mail account receives about 4.6 spam mails on average per day, which is a fifty-three percent decrease from the same period of the previous year (9.7 spam mails)." (6) To regulate spam, the Republic of Korea (Korea), one of the civil law countries, has frequently revised its anti-spam law; the "Act on the Promotion of Information and Communications Network Utilization and Information Protection, Etc." (PICNUIP). (7) Meanwhile, the U.S. Congress also enacted an anti-spam law; the "Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003" (Can-Spam Act). (8)

   Then, what is the problem of spam from a constitutional perspective? On the one hand, some critics, overwhelmingly in Korea, claim that spam is so useless and harmful that it should be regulated by law, especially because it invades receivers' constitutional right to privacy. (9) Others, however, argue that it should be protected as commercial speech. (10) These arguments resemble the conflicting points of view about privacy between the continental law countries and the United States--that is, "dignity v. liberty." (11) In other words, it seems that spam is a kind of problem in which both the senders' and receivers' constitutional interests conflict.

   In the meantime, the PICNUIP recently adopted "opt-in" (12) regulation over fax and telephone spam. However, in the United States, the Can-Spam Act maintains an "opt-out" (13) system. Among the legal regulations over spam, an "opt-out" solution may be preferable to "opt-in" legislation because e-mailers' commercial speech should also be respected.

2. THE CONCEPT OF SPAM

   1. What Is Spam?

      Spam is not a legal term and has different names such as "junk mail," (14) "bulk-mail," (15) or "unsolicited commercial e-mail" (UCE). (16) In general, it is conceded that spam must meet three criteria (as we can infer from its diverse nicknames): it must be unsolicited, it must be commercial in nature, and it must be sent in bulk. (17) However, with regard to these factors, deciding whether an e-mail is spam or not creates difficult problems.

      First, the fact that the e-mail is "unsolicited" is an essential factor of most definitions of spam. (18) However, "[f]rom a technical perspective ... it may be ... difficult to assess whether an e-mail communication is unsolicited, particularly if the prior relationship is comprised of something other than a previous exchange of e-mail messages." (19)

      Second, to be regarded as spam, an e-mail must be "commercial." The Can-Spam Act also requires a "commercial" trait. (20) However, other types of spam (i.e. "political spam") (21) do not demand this "commercial" trait. As to judging an e-mail's "commercial" character, "indirect as well as direct commercial content ought to qualify--for example, an e-mail message containing a review of a free web site that contains advertisements should be considered commercial if it is sent on behalf of the web site's operator." (22)

      Third, one of spam's problems comes from its tremendous volume. As its notorious nickname indicates, "bulk mail" may convey a single message to a huge number of recipients all over the world. The difficult problem, however, is "how many copies of a message must be sent and within what time period for them to qualify as a bulk transmission." (23) Therefore, most anti-spam laws do not include "bulk" as a factor of spam in their definition. (24)

   2. Definitions of Anti-Spam Laws

      The Can-Spam Act defines spam e-mail as a "'commercial electronic mail message,'" which means "any electronic mail message the primary purpose (25) of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose)." (26) Therefore, "the scope of the [Can-Spam] Act is not limited to unsolicited commercial electronic mail and is not confined to bulk email marketing campaigns." (27) In addition, "the [Can-Spam] Act largely exempts 'transactional or relationship messages' (defined to include order fulfillment, warranty information, etc.) and the 'routine conveyance' of electronic mail (defined essentially as the transmission of such messages by Internet Service Providers, or 'ISPs') from its substantive mandates." (28)

      In Korea, most scholars agree that spam is included in the phrase "advertisement information for the purpose of profit." (29) The PICNUIP also describes e-mail as an example of one of the methods to send advertisement information. (30) The advertisement information for the purpose of profit is more inclusive than commercial electronic mail messages, and therefore it includes not only e-mail, but also fax messages. (31)

      Throughout this Article, I will use the word "spam" as referring to "commercial [e-mail] message[s]" (32) according to the Can-Spam Act's definition.

3. THE FUNCTIONS AND PROBLEMS OF SPAM

   1. The Functions of Spam

      Spam usually does not lose its character as speech like regular e-mails, even if it is unsolicited or unwanted. Therefore, spam carries out a communicative role, which is a way of expressing an idea, regardless of whether it is wanted or not.

      In the meantime, it is plausible that "society also may have a strong interest in the free flow of commercial information. Even an individual advertisement, though entirely 'commercial,' may be of general public interest." (33)

      Even if it is very rare, it is also possible to conceive that we may easily find that some information from spam is useful. Furthermore, from a legitimate marketer's perspective, spam is a very inexpensive and efficient means of promoting goods and services to his or her potential customers.

   2. The Problems of Spam

      The proponents of anti-spam legislation insist that spam has many problems like embarrassing or offensive contents, cost-shifting, waste of Internet resources, distrust over e-mail, and invasion of privacy. (34)

      1. Embarrassing or Offensive Contents

         Most of the spam we receive contains embarrassing or offensive content, such as sexually explicit materials, advertisements for illegal loans, and viruses. Above all, spam messages containing obscene materials like hardcore pornography are harmful to minors. (35)

      2. Cost Shifting

         The cost of sending an e-mail is extremely low or close to nothing. (36) By taking advantage of this low cost, spammers shift the cost to the recipient who "incurs the cost of bandwidth, processing time, hardware costs, storage costs, mail server software licenses, and lost productivity in dealing with the messages." (37) In 2003, it was anticipated by Ferris Research Inc., a consulting group, that "spam will cost U.S. organizations more than $10 billion this year. The figure includes lost productivity and the additional equipment, software and manpower needed to combat the problem." (38)

      3. Waste of Internet Resources

         It is said that

         [s]pam represents a significant proportion of all e-mail traffic, consuming massive amounts of network bandwidth, memory, storage space, and other resources. Internet users and system administrators spend a great deal of time reading, deleting, filtering, and blocking spam, so Internet users pay more for Internet access as a result of spam. Spam and anti-spam measures frequently interfere with other e-mail traffic and other legitimate Internet uses. (39) It is also alleged that spam--especially spam that conveys picture files or multimedia data--may cause undue burdens, business losses, or system failure. (40)

      4. Distrust Over E-mail

         Spam may cause distrust in e-mail. Since an e-mail inbox is assigned a finite amount of disk space, if the inbox is not deleted after being filled with spam, then the lack of memory may prevent it from receiving legitimate e-mails. (41) Some e-mail users therefore now routinely use a delivery-notice function, operated by "web bug," to verify whether their e-mail has been received or not. (42)

4. THE REGULATION OF SPAM

   Spam regulations vary according to their criteria, like self-regulation, technical regulation, legal regulation, etc.

   1. Self-Regulation

      The most desirable regulation is self-regulation--that is, "netiquette," which absolutely needs the voluntary participation of spammers. (43) However, a problem with self-regulation is that "rules of netiquette generally lack enforcement mechanisms." (44)

   2. Technological Measures

      One commentator describes the spam problem by stating that "[t]he technological response to spam has been purely defensive, akin to the efforts of medieval kings to protect themselves by building massive walls around their towns and castles in order to keep out brigands and invading armies." (45) Blocking and filtering, used by ISPs and individual end-users, are examples of passive technical measures. (46)

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