House bill targets unsolicited ‘commercial’ or ‘pandering’ e-mail

Friday, October 29, 1999

Still exploring ways to combat the problem of unwanted commercial e-mail, Congress is now considering a bill that would limit sexually solicitous spam.

Rep. Heather Wilson, R – N.M., along with 24 other members of Congress, recently introduced the Unsolicited Mail Act of 1999. The bill would prohibit the sending of unsolicited “commercial” or “pandering” electronic messages unless the messages contain a conspicuous reply address to which recipients may respond that they do not want any further e-mails.

A new wrinkle in Wilson's bill, as compared to other anti-spam bills currently before Congress, is the phrase “unsolicited pandering electronic mail,” defined as e-mail that the “recipient, in his or her sole discretion, believes to be erotically arousing or sexually provocative.”

The measure would require the Federal Communications Commission to make a list of people who have indicated that they do not wish to receive any more unsolicited e-mail. Spammers would be prohibited from sending e-mail to any individual who has appeared on the FCC list for more than 30 days.

The bill would also allow individuals to sue spammers in local court or to ask the FCC to investigate and enforce the prohibition.

Wilson says the bill does not infringe on First Amendment rights but protects privacy rights and children. “This bill does not limit free speech on the Internet,” she said in a news release. “It just gives people the power to decide what they don't want to see or listen to.

“This bill gives more power to parents to protect their children from exposure to pornographic Web sites,” she said. “Unsolicited e-mail with seemingly benign subject lines is a common tactic used by pornographic marketers.”

However, at least one constitutional law expert says that the bill poses both constitutional and practical problems.

“The bill is quite sweeping in its language and the authority it grants to the FCC,” said Robert O'Neil, founder of the Thomas Jefferson Center for the Protection of Free Expression. “This bill is much more comprehensive and much more sweeping in scope than other anti-spam bills in Congress.”

O'Neil said he was particularly troubled by the provision dealing with “unsolicited pandering electronic e-mail.”

“The definition of 'unsolicited pandering e-mail' — as 'erotically arousing or sexually provocative' — is vague and uses none of the language that triggers obscenity,” O'Neil said. “I find the definition quite troublesome.”

He also questioned how spammers would know who is on the FCC list of people who do not want to receive further spamming. “This measure places the burden on the sender to keep current on the FCC list. This is an onerous burden.”