Question says it all, really. Why isn’t this new law–and myriad other state laws such as “do not call” lists and such–a restriction of interstate commerce by a state and thus unConstitutional?
I’m no expert, but I’d guess that it’s because it restricts the advertisement of goods, and not the goods themselves. Interesting question.
I’m no expert, but I’d guess that it’s because it restricts the advertisement of goods, and not the goods themselves. Interesting question.
In layman’s terms, I’d say that spam should be illegal because “you’re not allowed to do things without my permission that cost me money”. I don’t know if that holds up legally, but it’s basically the rationale behind the federal junk-fax regulations and the same arguments apply to spam. IMO, this law does not impose much barrier to commerce because I’m still perfectly able to buy all the mini-RC racers, penile implants, and moose pr0n I want. You just can’t clog my server and bandwidth with your ads unless you meet certain criteria.
IANAL, so I can’t really address the OP from anything more than my opinion of what is right (as opposed to legal). I’m also basically opposed to laws like this because I believe they will ultimately be ineffective and they will dilute the anti-spam forces which should be pushing more effective solutions. Of course, that’s got nothing to do with GQ…
You’d be hard pressed to show that receiving spam costs you (the private citizen) money.
IANALawyer, but my guess would ditto ultrafilter. “Commercial Speech” is distinct from “Political Speech”, and the former is not constitutionally protected to the same extent.
Not at all. I can demonstrate that my mailservers have to have several orders of magnitude more processing power and memory than would be necessary only for non-spam traffic. Many companies and individuals pay for bandwidth incrementally with monthly caps, and end up paying a great deal of money if they exceed caps, so spam which uses their bandwidth costs them money by using a metered resource (exactly analogous to a cellphone call which doesn’t necessarily cost you money directly until your monthly minutes are used, but it contributes to costing you money by using up minutes). In addition, spam with forged headers costs the owner of the forged domain a tremendous amout of time, resources, and commercial goodwill when the recipients respond with a backlash. These are off-the-cuff and I’m sure I could come up with more ways that spam costs the recipients real dollars, not just intangibles like lost time reading or filtering it. These are real expenses that companies have to spend dollars to cover because someone else feels they have a constitutional right to send unsolicted mail.
Postal mail costs the sender real money to send and cost the recipient nothing. Faxes cost the recipient real money in paper and supplies. The former is legal but unsolicited junk faxes are prohibited by federal law. I think it’s obvious which side of the line email belongs on.
State anti-spam laws have been declared Constitutional, in California and Washington, primarily because of careful drafting. The dormant commerce clause of the Constitution, as it would pertain to this, basically prevents states from unduly burdening commerce by allowing states to pass laws that would subject those in commerce to unduly conflicting or burdensome regulations. If fifty different states have fifty different laws that must be compiled with, the burden on interstate commerce may outweigh the benefit to the state. In that circumstance, uniform regulation is required. Only the U.S. Congress can provide that.
The statute in California (which requires ads to start with ADV: and adult ads to start with ADV:ADLT, thus making them a snap for filters to catch) was found to be constitutional because it didn’t regulate the internet or internet use per se. It regulates individuals who (1) do business in California, (2) utilize equipment located in California, or (3) send spam to California residents. To pass Constitutional muster, the burden on commerce must be outweighed by the benefit to the state. Deceptive spam now constitutes up to 30% of all email sent on any given day (although that figure seems low to me), is a waste of time and money, and is a favored method of perpetuating fraudulent business schemes and computer viruses. Basically the statute was not so restrictive that compliance would cause an undue burden on commerce that was not outweighed by the benefit to the state gained by ridding itself of deceptive spam.
The issue is far from resolved, though; if the California case doesn’t go to SCOTUS, one like it will. That is, if Congress doesn’t act first.
Hmm. That second sentence in my post is a little tortured. It should read:
“The dormant commerce clause of the Constitution, as it would pertain to this, basically prevents states from interfering with interstate commerce by passing laws that subject those in commerce to unduly burdensome or conflicting regulations.”
This is called the “Pike Balancing Test,” after Pike v. Bruce Church: if the law creates a burden on interstate commerce that is not outweighed by the benefit to the state, it is unconstitutional. On the other hand, if a law actually discriminates against out-of-state commerce in favor of its own, the standard is much higher; it is “virtually per se” unconstitutional.
If nothing else, can’t the “truth in advertising” laws be applied against these the spammers?
Many of them are fraudulent and could be attacked with existing laws on those grounds. However, a large portion of spam comes from real businesses trying to sell real products. IMO, the legitimacy of the business sending the email is not sufficient to give them the right to consume my resources to advertise their product. Unsolicited commercial email is wrong regardless of whether it is fraudulent or not.
I guess the question at heart is what constitutes the freedom to pitch a product and the freedom not to be harassed. I feel that if someone knocks on my door trying to sell me Amway, religion or whatever and i tell them to go away,and they come back every day/week then its harssment. The consumer public should have a national "call list"that many states do, that simply says that they dont want to recieve any product offers. Therefore we are not denying anyone a “pitch” that wants one and people arnt being annoyed and harassed when they dont want one. Failure to abide by these lists can result in fines etc.Problem solved. Next step is to remove the politician waiver cause maybe we dont want to hear THAT crap either and consumers should have just as much right not to be exposed to that nonsence if they choose not to as well. And although i dont know this for sure i think telephone companies which in my opinion are the WORST have some form of wavier as well.
I realized too late that Monty and I were using different measures of fraud when I replied to him. Monty’s post was much more on topic for the thread: Virginia’s new law specifically outlaws emails sent using fraudulent info (forged headers, etc.) whether or not they advertise legitimate businesses, and Monty makes a good point that we could probably cover that under existing laws. In my response, I assumed he was talking about spam which contained fraud only in the body. My bad.
I’m afraid I have to disagree with jonpluc on practical grounds if not philosophical, though doing so may be more appropriate for GD. The problem with comparing spam to telemarketing is jurisdiction. Telemarketing do-no-call lists are relatively effective because most telephone calls to US residents come from a US source. AFAIK, it is expensive and impractical to operate a call center offshore. (I know that several tech support call centers are operated from Inda, but I believe these run through a US-located PBX and are, for all intents and purposes, a US call placed to/from a US business). With spam, you can only enforce a do-not-spam list against US spammers, and it’s trivial to move your operation offshore or just bounce your spam through an offshore relay. IMO, any legal solution to spam will likely be ineffective because it cannot be enforced outside the country that enacts it, and US-based spam legislation suffers from the same short-sightedness that led to US encryption export bans based on the assumption that people outside the US couldn’t do math.
BTW, thanks to pravnik for your response. You may have thought it was tortured, but I thought it was one of the most concise and understandable summaries I’ve seen.
You’re welcome. 
The dormant commerce clause is sort of a dorky obsession of mine. asterion has a good eye; if I were a constitutional law professor I would be very pleased if a student saw a commerce clause issue in state anti-spam laws.
Thanks for the clarification, micco. That’s exactly what I meant. Let me use those other scum-o’-da-earth, telemarketers, as an example. Sometimes I get a phone call and my caller ID has “blocked” where there’s supposed to be a phone number. Quite often, it’s a telemarketer. Now, seriously, why should I be interested in buying something from someone who’s ashamed of either the product he’s selling or his method of selling that product? It’s the same issue for me with spam e-mail. False information is false advertising, AFAIC.