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Does Spamming Constitute Protected Free Speech?



I know, I know....
I'm posting, me, the one who chokes in my own pile of spam. My topic is information 
quality, so I found this interesting article on spamming and it's ramifications on free 
speech issues. All pills, including those that insure integral rights like speech, are 
hard to swallow sometimes. I would be interested to see what kind of tone you get from 
this article.. Where is the irony coming from and what point is he trying to make with 
it?
	-Margaret Peacock
	peacm@ruby.ils.unc.edu

Does Spamming Constitute Protected Free Speech?

    By Bill Frezza

    "Congress shall make no law ... abridging the freedom of speech, or of the
    press." Important words, guaranteeing the right of every American to
    speak his or her mind.

    But where in the First Amendment does it say that a private company is
    obliged to act as an unwilling distributor of information considered
    unwelcome or harassing by the vast majority of its customers?

    By what tortuous reasoning can a constitutional restriction on the power of
    government be used to disarm private organizations attempting to protect
    themselves and the privacy of their customers from unwanted intrusions?

    Does upholding the same freedom of speech that is keeping abominations
    like the Communications Decency Act at bay imply that we are doomed
    to drown in a sea of spam as traditional direct-mailers discover the potent
    economics of electronic junk-mail distribution?

    It could certainly happen.

    The fight by America Online and other Internet service providers to
    respond to their customers' pleas to disconnect aggressive junk-mailers is
    spilling into the courts. Our judicial system must now decide where the
    rights of one group end and the rights of another begin. By what standard
    will this decision be made?

    There was a time when such a question was easy to answer. Rights were
    ascribed to individuals and not groups. Private contracts between freely
    consenting adults were held sacrosanct. The government's role in
    providing for the common weal was limited to powers explicitly
    enumerated in the constitution, and freedom of association was counted
    among the basic rights of Americans.

    But today we live in a world where restaurant owners can be sent to jail if
    they choose to serve smokers and auto makers can be put out of business
    if their cars don't meet fuel efficiency standards. Is it any wonder that it's
    no longer easy to guess the outcome of the great Internet junk-mail battle?

    Many slippery slopes await, all of which will be pursued persuasively by
    the litigants.

    Should ISPs be treated like common carriers? Since the early days of the
    railroads, this peculiar legal classification earned its holders certain rights
    and privileges in return for accepting open-ended political obligations.
    Government largess, often in the form of rights-of-way but sometimes
    including explicit subsidies or monopoly status, was granted as long as
    common carriers agreed to subject themselves to "democratic control."

    This gave every citizen and lobbying group the ability to have an impact on
    a company's terms of business, including dictating who it can or must
    serve. If the post office has to deliver junk mail, why not America Online?

    If ISPs are not common carriers, do they have a right to pick and choose
    their customers? The civil rights movement, for all the good things it
    accomplished, destroyed forever the idea that we enjoy freedom of
    association in this country. Neither in employment nor in serving the
    public, which means doing business with anyone outside your own family,
    is it permissible to practice discrimination.

    For a private company to declare that it will not accept the business of
    specific classes of "legitimate" customers is an invitation to a lifetime of
    litigation. If insurance companies can't even refuse to write policies for
    homes built on hurricane- prone beaches, how can an ISP turn down
    someone's business just because it doesn't like the content of his or her
    E-mail?

    The ultimate slide into the quagmire comes when an aggrieved party can
    claim a "compelling public interest." Thanks to expansive interpretation of
    the interstate commerce clause, the constitution's most egregious camel's
    nose under the tent, government can interfere in any business it chooses
    provided it can make a case that the business crosses state lines and that
    intervention serves the "public good." Such an approach vitiates the whole
    concept that there is such a thing as a private business, turning every
    commercial dispute into a game of power politics.

    Who is "the public" and what are its interests? Only your lawyer knows
    for sure.

    Even then, if you're not happy with the decision of the courts, you can
    always go back and lobby Congress. Just tell them about all the new jobs
    Internet junk mail will generate. Surely, this public good outweighs the
    private inconvenience of having to hit the "delete key" 200 times a day.

    No matter how you look at it, the spammers are gaining the upper hand,
    and we have no one to blame but ourselves.

    Perhaps there is a silver lining in this black cloud. Maybe we will sink so
    low in our abandonment of the idea of "private" that a movement will
    emerge to re-establish the rights of contract and freedom of association
    within the peculiar domain of cyberspace.

    Seeking solutions outside the realm of government, perhaps the ultimate
    cause of privacy will be enhanced via the development of purely
    technological means by which individuals can control their own
    information flow.

    Wouldn't it be sweet revenge if a torrent of spam released by government
    intervention creates a market for sophisticated filtering, encryption and
    authentication tools that will force everyone, including Uncle Sam, to mind
    their own business?

    ---

    Bill Frezza is president at Wireless Computing Associates and
    co-founder of the online forum DigitaLiberty. The opinions expressed here
    are his own. He can be reached at frezza@interramp.com.

    Copyright  1996 CMP Media Inc.


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