Anti-spam measure clears House committee

Friday, June 16, 2000

A measure designed to combat junk e-mail is now heading to the full House after the Commerce Committee unanimously approved the measure on June 14.

“Millions of unsolicited commercial e-mails, which contain advertisements for legitimate products as well as pornography, dubious products, or get-rich-quick schemes, clog up individuals’ computer systems and the entire information superhighway,” Rep. Heather Wilson, R-N.M., the bill’s sponsor, said in a news release. Wilson compared junk e-mail to “telemarketers calling collect.”

The Unsolicited Commercial Electronic Mail Act of 2000 would require spammers to include accurate return addresses, label their advertisements and desist from sending further junk e-mails if a recipient so requests.

Wilson initially introduced a form of the bill last fall, called the Unsolicited Mail Act of 1999. However, that measure never advanced in Congress, due partly to concerns about the broad definition of unsolicited “commercial” or “pandering” electronic messages.

However, the new version of the bill tightens up the definition of spam, according to Wilson press secretary Kevin McDermott. “The bill went nowhere last year, in part because there were some free-speech concerns about the bill,” said McDermott. “However, we have narrowed the definition so that it satisfies constitutional concerns.”

The measure now defines “commercial electronic mail” as “any electronic mail message that primarily advertises or promotes the commercial availability of a product or service for profit or invites the recipient to view content on an Internet web site that is operated for a commercial purpose.”

The measure provides that “an electronic mail message shall not be considered to be a commercial electronic mail message solely because such message includes a reference to a commercial entity that serves to identify the initiator.”

“We did not want to include in the definition of commercial e-mail the owner of a small business who wanted to send e-mails to members of Congress about his or her concerns about a political matter but happened to include the business name in the message,” he explained.

Though the bill is more narrowly drafted than last fall’s version, the measure still raises constitutional concerns, says commercial speech expert Richard Kaplar, editor of the Commercial Speech Digest.

“We must remember that the Supreme Court has given the Internet the highest degree of First Amendment protection — the same as newspapers,” Kaplar said. “Therefore, any attempt to regulate Internet speech — even spam — must tread very lightly on the Constitution.

“False and misleading advertising is not entitled to First Amendment protection in any medium,” he said. “On the other side of the coin, however, this bill would compel advertisers’ speech (i.e., require advertisers to include certain language) in ways that raise some concerns.

“Consumer privacy is shaping up as the newest and biggest challenger to
commercial-speech rights,” Kaplar said. “Spam will be one of those key issues where this
battle is fought and determined.”

McDermott says that Wilson expects the full House to vote on the measure by the end of this month. “We certainly hope that they will vote on the bill before the August recess,” he said.