The Indecency of Unsolicited Sexually Explicit Email: a Comment on the Protection of Free Speech v. the Protection of Children

• Publication year: 2002
• Citation: Vol. 26 No. 04

SEATTLE UNIVERSITY LAW REVIEWVolume 26, No. 1SUMMER 2002

COMMENT

The Indecency of Unsolicited Sexually Explicit Email: A Comment on the Protection of Free Speech v. The Protection of Children

Monique Redford(fn*)

I. Introduction

The transmission of unsolicited commercial email, also known as spam, has gained popularity as a means for advertising because of its minimal cost to the advertiser. It is estimated that 80.3 trillion unsolicited email messages are sent each year, with an average of 220 million messages sent each day.(fn1) Approximately three out of ten email messages are spam,(fn2) and over 30% of those emails contain sexually explicit material.(fn3) Though the transmission of email may be basically free to the advertiser, costs are imposed both on the Internet Service Providers (ISPs) and on the ultimate recipients of the messages.

Historically, states have attempted to regulate unsolicited email through legislation but have failed because the courts have generally held that these laws violate the dormant Commerce Clause due to the laws' extraterritorial impact.(fn4) Consequently, the dormant Commerce Clause has been referred to as "a nuclear bomb of a legal theory" against state Internet regulations.(fn5) However, a recent State Supreme Court decision upholding Washington's spam law, State v. Heckel, has defused the "nuclear bomb" with respect to the regulation of unsolicited email in Washington.(fn6)

The outcome of Heckel not only affects future litigation, it also enables the Washington State Legislature to amend the current legislation to eliminate the flow of unsolicited sexually explicit commercial email within Washington State. While there are Washington laws that make it unlawful to sell, distribute, or display erotic (hereafter referred to as "sexually explicit") material to a minor,(fn7) there are no laws that proscribe the transmission of this material through email. The current spam law prohibits the transmission of unsolicited email that contains misleading subject headers or transmission paths, but it is silent regarding messages with sexually explicit material.(fn8) Thus, while the Washington legislature has expressed an interest in protecting children from harmful material, it has failed to enact laws in an area where the transmission of sexually explicit material is prevalent.(fn9)

Because the state of Washington has a compelling interest in protecting the moral and psychological welfare of its children,(fn10) the current spam law should be amended to also proscribe the transmission of unsolicited sexually explicit commercial email within its borders. This article argues that such an amendment would not violate either the dormant Commerce Clause or the First Amendment. In support of this thesis, section II first addresses the pervasive problem of children-not just adults-receiving sexually explicit material via unsolicited email. Then, sections III through V discuss the implications of the dormant Commerce Clause, the First Amendment, and the policy considerations that support elimination of unsolicited sexually explicit email.

II. The Exposure of Sexually Explicit Email to Children

In 2000, 54 million households in the United States had at least one computer. Of those households, at least one member of the household was connected to the Internet.(fn11) Moreover, public schools educate children on how to use a computer and access the Internet.(fn12) Internet access is not exclusive to adults; children have access and are connecting at home.(fn13) Nine out often children (ages 6 to 17) had access to a computer in 2000; three out often use the Internet at home.(fn14) Of all the applications available, email is the easiest and most common Internet application used at home.(fn15) Seventy-four percent of the children who are connected to the Internet at home use email.(fn16)

The National Center for Missing and Exploited Children recently surveyed 1,501 young people, ages 10 to 17, who regularly use the Internet.(fn17) Of those young people, 25% reported being exposed to unwanted sexual pictures in the last year, and 28% of those exposures occurred either while opening email, after clicking a hyperlink in email, or while instant messaging.(fn18) The content of these messages fell into one of three categories: (1) messages containing nudity; (2) persons engaged in intercourse; or (3) violence in addition to sex and/or nudity.(fn19) Twenty-three percent of the children who reported exposure incidents stated that they were either very or extremely upset by the content, which amounted to 6% of the total youth interviewed.(fn20)

Of the unwanted exposures that occurred through email, 63% came to email addresses used solely by the youth.(fn21) Additionally, in 93% of the occurrences, the message was sent from an unknown source.(fn22) Most of these exposures occurred while the youth was at home, although some reported that they were exposed while using a computer at school or in the library.(fn23) Only 39% of these incidents were disclosed to parents, and none were reported to a law enforcement agency.(fn24)

iii. unsolicited email, the dormant commerce clause, and State v. Heckel

Congress has the power to regulate commerce with foreign nations and among the several states.(fn25) Implicit in this power is the dormant Commerce Clause principle that prevents states from impermissibly intruding on this exclusive federal power by enacting laws that unduly burden interstate commerce.(fn26) Courts generally follow an analysis known as the Pike balancing test for determining whether a state law is unconstitutional because it violates the dormant Commerce Clause.(fn27)

The Pike test is a two-step process. First, the court determines whether or not the law openly discriminates against out-of-state business interests in favor of intrastate businesses.(fn28) Laws that openly discriminate against out-of-state interests are subject to the strictest scrutiny of the "purported legitimate local purpose and of the absence of nondiscriminatory alternatives."(fn29) Second, if the law applies even-handedly to both inter- and intra-state businesses (i.e., it is facially neutral), the court then must balance the local benefits provided by the law against the interstate burdens imposed by the law.(fn30) If the law promotes a legitimate state interest, it will be upheld unless the burden on interstate commerce is clearly excessive in relation to the local benefits the law creates.(fn31) If the law survives this two-part analysis, the court will next evaluate whether the law leads to inconsistent burdens among the states or regulates extraterritorially.(fn32)

The dormant Commerce Clause prohibits laws that are inconsistent with or that conflict with other states' laws.(fn33) The Commerce Clause protects against inconsistent legislation arising from the projection of one state regulatory scheme into the jurisdiction of another state.(fn34) Although the meaning of this requirement is generally unclear, it is established that it does not mandate state law uniformity.(fn35)

Finally, the dormant Commerce Clause prohibits the "application of state statutes to commerce that takes place wholly outside the State's borders."(fn36) The critical inquiry under the extraterritoriality principle is "whether the practical effect of the regulation is to control conduct beyond the boundaries of the State."(fn37)

In State v. Heckel, the Washington Supreme Court held that Washington's Commercial Electronic Mail Act did not violate the dormant Commerce Clause.(fn38) This Act makes it unlawful to transmit to a Washington resident or from a Washington computer commercial email messages containing misrepresentations in either the subject line or the transmission path.(fn39) The statute responds to the concern of unsolicited email messages (spam) that are misleading or fraudulent.(fn40)

In upholding the statute, the court first recognized that the Act did not discriminate against out-of-state interests in favor of Washington residents.(fn41) The Act applies equally to both Washington residents and nonresidents.(fn42) Thus, because the law does not openly discriminate against out-of-state interests, strict scrutiny does not apply.(fn43)

The court next moved to the second part of the dormant Commerce Clause analysis, which is a two-part inquiry: (1) whether Washington has a legitimate purpose for banning this type of email; and (2) whether the burden on interstate commerce is clearly excessive in relation to the local benefits the law creates.(fn44) The court first recognized Washington's legitimate purpose in banning fraudulent or misleading messages to alleviate the cost shifting inherent in the sending of deceptive spam.(fn45)

The state has a legitimate purpose in protecting the interests of ISPs, owners of forged names, and email users. ISPs incur additional costs attributable to spam because they have to purchase additional computer equipment to handle the increased flow.(fn46) Additionally, more personnel need to be hired to handle the complaints about the spam as well as to detect accounts being used to send out spam.(fn47) Furthermore, individual users are unable to distinguish spam from legitimate personal or business messages, forcing them to spend valuable time weeding out the wanted from the unwanted. These efforts take time and cause...