The CAN-SPAM Act of 2003: is congressional regulation of unsolicited commercial e-mail constitutional?

• Jurisdiction: United States
• Date: 01 July 2004
• Author: Simon, Marc
• Published date: 01 July 2004
• Author: Simon, Marc

1. INTRODUCTION

   With the advent of the internet, commercial advertisers have seized the opportunity to exploit the new e-mail medium, one of the easiest, least expensive, and least regulated means of reaching a captive audience. In 1999, 2.2 billion junk e-mail messages were sent worldwide daily, totaling 803 billion pieces of junk or spam e-mail sent each year. (2) Today, spam constitutes more than 40 percent of all e-mail traffic on the internet, and it is anticipated that in the near future, that number will exceed 50 percent. (3) Furthermore, according to the Wall Street Journal and Reuters, 50 percent of children with email accounts receive e-mail with pornography, and under current law, parents are virtually powerless to stop their children from receiving inappropriate and disturbing solicitations. (4) This rampant abuse of the internet by bulk commercial solicitors has led to a public outcry for action. (5)

   On December 16, 2003, the President signed the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM Act, the Act) into law. (6) The CAN-SPAM Act took effect on January 1, 2004. (7) This is the first federal law to attack the wave of spam that has overwhelmed computer in-boxes and cost businesses billons of dollars a year. Congress has tried numerous times in recent years to approve anti-spam legislation, but none of the over thirty proposals have made it through both houses. (8) Congress' efforts repeatedly have stalled over concerns about what is technologically possible and legally enforceable.

   This article is one of the first to analyze the provisions of the CAN-SPAM Act in light of anticipated First Amendment challenges. The Act has yet to be challenged on constitutional grounds as it has only been in effect since January 1, 2004. However, a First Amendment challenge is imminent. (9)

   The article contends that the CAN-SPAM Act will be upheld as constitutional in light of inevitable First Amendment challenges. Specifically, the article presents the likely First Amendment challenges to the Act's labeling requirements for spam, the Act's creation of a national do-not-e-mail registry, and the Act's increased labeling requirements for sexually oriented unsolicited commercial email (UCE). The article then concludes that the Act's provisions will pass constitution scrutiny when analyzed under the First Amendment's commercial speech doctrine. Although these provisions of the CAN-SPAM Act are likely to be upheld as constitutional, the article argues that the Act's do-not-e-mail registry will not be effective in reducing spam or locating senders of illegal UCE. The sheer breadth and physical makeup makes location of senders of illegal UCE impossible.

   Part II of the article gives a brief overview of the CAN-SPAM Act. Part III discusses the current problem of junk e-mail. Part IV provides the legal background of the court's commercial speech doctrine. Part V analyzes the constitutionality of the CAN-SPAM Act's requirements for labeling regular UCE and the creation of a do-not-e-mail list. Part VI analyzes whether the CAN-SPAM Act may constitutionally require UCE containing sexually explicit material to be labeled further as a sexually explicit UCE. Part VII concludes that the labeling and do-not-e-mail provisions of the CAN-SPAM Act of 2003 will most likely be upheld as constitutional in the face of First Amendment challenges.

2. OVERVIEW OF THE CAN-SPAM ACT OF 2003

   The CAN-SPAM Act of 2003 requires unsolicited commercial email messages to be labeled (though not by a standard method) and to include opt-out instructions and the sender's physical address. The law prohibits the use of deceptive subject lines and false headers in such messages. It pre-empts state laws that require labels on unsolicited commercial e-mail or prohibit such messages entirely, but does not affect provisions that address merely falsity and deception. Furthermore, the CAN-SPAM Act includes a provision authorizing the FTC to establish a national do-not-e-mail registry of addresses of persons and entities who do not wish to receive unsolicited commercial e-mail messages. The bill imposes both civil and criminal penalties for various illegal spammer tactics and noncompliance with opt-out and do-not-e-mail requests.

3. THE UCE PROBLEM

   The principal reasons for the explosive growth of spam include the ease with which senders can transmit large quantities of e-mail and the similar ease with which spammers can conceal their identities as the source of this junk mail. (10) The internet allows senders to transmit virtually unlimited quantities of advertising messages at very low costs. (11) Therefore, spammers have every incentive to send out as many e-mails as possible, even if virtually no recipient wants or responds to the promotions. (12)

   Spammers do not bear the costs of processing, sorting, and delivering e-mails; instead, it is the recipients and their internet service providers (ISPs) who must absorb the costs of managing the huge volume of unwanted mail. (13) The ISPs used for transmitting spam must deal with the problem of increased bandwidth, requiring the expense of large amounts of money on hardware to handle the increased volume of e-mail sent and stored on a daily basis. (14) Floods of e-mails from remote computers can cripple ISP servers for hours. (15) Service providers must also hire additional administrative staff to register and to handle customer complaints. (16) Ultimately, the added expenses incurred by the ISPs are passed onto the customers in the form of increased hourly or monthly charges. (17)

   Additionally, technical protocols used to send e-mails on the internet can be manipulated by spammers, both to conceal their identities as spam senders and to conceal the volume and scope of their e-mailing activities. (18) The open nature of the internet allows spammers to avoid accountability for their activities and to undermine and to frustrate the attempts of consumers and ISPs to filter out or block their junk mail transmissions. (19)

4. DEVELOPMENT OF THE FIRST AMENDMENT'S COMMERCIAL SPEECH DOCTRINE

   The First Amendment to the U.S. Constitution provides that "Congress shall make no law ... abridging the freedom of speech. ..." (20) However, not all speech is automatically protected by the First Amendment. Courts must attempt to balance governmental interest against intrusion on speech to determine whether in light of the purposes of protecting speech, the First Amendment can allow the intrusion. First Amendment restrictions on speech have developed on a case-by-case basis.

   The Supreme Court has created a hierarchy of speech, determining that certain types of speech are more essential than other types in the furtherance of our democracy, therefore receiving greater protection under the First Amendment. (21) At the top of this hierarchy is political speech, which is subject to minimal regulation. (22) The bottom of the hierarchy includes types of speech designated by the courts to be unprotected, including language that incites illegal activity, speech determined to be "fighting words," and forms of communicated obscenity. (23) Government may freely regulate unprotected forms of speech, because the communications have little or no value. (24) In the middle of the court's hierarchy is partially protected speech, which enjoys less protection than political speech. (25) This middle category includes sexually explicit non-obscene speech and commercial speech. (26)

   Commercial speech regulation has gone through drastic changes since its inception. In 1942, the Supreme Court held in Valentine v. Chrestensoen (27) that the First Amendment did not protect commercial speech. (28) Although the court found that states may not regulate the manner in which an individual communicates information and opinions in a public forum, the court held that the First Amendment "imposes no restraint on government as respects purely commercial advertising." (29)

   The Court reaffirmed its position in Valentine until 1976, when in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (30) it concluded that commercial speech received First Amendment protections. (31) Prescription medication users challenged a Virginia statute that prohibited pharmacists from advertising medication prices. (32) They claimed that the First Amendment prohibited the government from disrupting the flow of information from pharmacists willing to provide the information to consumers who wished to receive it. (33) Weighing the asserted state interest in maintaining a high degree of professionalism and the protection of its citizens against First Amendment concerns, the Court held the Virginia statute unconstitutional. (34) However, the Court noted that despite its holding, some forms of commercial speech regulation as to time, place, or manner and prohibitions on false and misleading communication were still permissible. (35)

   In Central Hudson Gas & Electric Corp. v. Public Service Commission, the Court expanded on the idea that the government may regulate some commercial speech. (36) In Central Hudson, a utility company challenged a regulation of the Public Service Commission of the State of New York that completely prohibited any promotional advertising by electrical utility companies. (37) The Court applied intermediate scrutiny, somewhere between the "least-restrictive means" test used in some cases involving freedom of the press and the "rational basis" test used in Fourteenth Amendment equal protection analysis, in making a determination whether a regulation of commercial speech offends the First Amendment. (38)

   1. Central Hudson Test.

      In Central Hudson, the Court sought to expand its commercial speech doctrine under the First Amendment by applying an intermediate scrutiny test when reviewing restrictions on commercial speech, the speech that best describes commercial e-mail. (39) The Court established a...