In March 2002, a U.S. district court in Missouri ruled that the constitutional right of spammers to send commercial junk to your fax machine outweighed your right to not have to spend your money to receive their messages. That decision made it look like there was no chance for any federal legislation to control spam because the same issues are at stake there. But the eighth circuit Court of Appeals has just reversed that ruling, and the logic of the court’s decision seems like it also would apply to a law controlling unsolicited e-mail.
In this case, American Blast Fax, a spam fax company, claimed that the federal Telephone Consumer Protection Act (TCPA) was unconstitutional because it limited the First Amendment right of free speech for advertisers. The lower court accepted this argument and, in effect, tossed out the TCPA. The government appealed, and even though American Blast was supported by Wal-Mart, the appeals court sided with the government.
The Congressional supporters of the spam industry’s right to send unlimited amounts of spam – now in the billions of messages per day – have been using the Constitution as an excuse for not acting for quite a while. Now that will be harder.
The appeals court decision focused on what is known as the “Central Hudson” test to determine if the law was constitutional. The test, named after a 1980 U.S. Supreme Court case, consists of three tests that a law regulating truthful commercial advertising must pass. The first test is “whether the asserted governmental interest is substantial”; if so, then the second test is “whether the regulation directly advances the governmental interest”; if so, then the final test is “whether it is not more extensive than is necessary.”
The “asserted governmental interest” in the case of faxes is preventing “cost shifting” from the advertiser to the user. The court found that the cost shifting in the case of faxes was more than $100 per year per fax machine. The total cost of this is small potatoes in comparison with spam, which is estimated to cost U.S. businesses $9 billion and European businesses $2.5 billion per year, plus untold hours wasted by individuals.
I expect that a well-crafted antispam bill would be able to pass the other two tests even though any restriction in the U.S. would be at best a partial solution. But the court’s decision specifically says that a partial solution is OK. A bill that targets any company doing business in the U.S. that is the beneficiary of spam would be only a partial solution, but would help a lot.
Congress now has a green light to seriously consider antispam legislation but, considering the legislative body’s predilection to support the folks who donate money to their campaigns, I’m not holding my breath for a meaningful bill.
Disclaimer: Harvard-trained lawyers could help draft such legislation and help challenge it – so if asked, the university might be neutral. But I did not ask.
Bradner is a consultant with Harvard University’s University Information Systems. He can be reached at sob@sobco.com.
