EFF analysis of CA anti-spam bill, A.B. 1629

(letter to CA Gov. Pete Wilson)

Full text of bill available at:
http://www.eff.org/pub/Social_responsibility/Spamming_and_net_abuse/Foreign_and_local/CA/HTML/ca_ab1629_1998_bill.html

September 9, 1998

Sent via post and facsimile (916) 445-4633

Governor Pete Wilson
State Capitol, 1st Floor
Sacramento CA 95814 USA

Dear Governor Wilson:

I write to you on behalf of the Electronic Frontier Foundation (EFF) to urge your veto of A.B. 1629, a bill recently passed by the California legislature regarding junk Internet e-mail ("spam"). EFF is a privately funded, nonprofit organization concerned with protecting civil liberties and promoting responsible behavior in the electronic world. Our interest in the junk e-mail issue is keen, as two major components of EFF's mission are to ensure that online communications and publishing remain no more restricted or censored than other media, and to support the growth and utility of the Internet for all participants. Despite its good intentions, the A.B. 1629 anti-spam proposal places burdens on Internet speech in violation of the First Amendment, runs afoul of the Commerce Clause, and fails to actually solve the problem it seeks to address.

Electronic mail (e-mail) is expected to become the primary medium for person-to-person communication within the next couple of years, replacing a great deal of physical mail and telephone calls. As such, e-mail requires an extremely high level of First Amendment protection. As annoying as the problem of unwanted e-mail can be, we must act with the most extreme caution in passing laws concerning who can send e-mail to whom, how the e-mail can be sent, and, most of all, limitations on the content of e-mail messages.

Any restriction of online media, including bulk and/or commercial mailings, must be consonant with restrictions on other media. A.B. 1629, in contravention of Reno v. ACLU, ___ U.S. ___ (1997), attempts to apply to commercial speech sent over electronic mail, regulations that would be unconstitutional for paper mail, telephony, television and radio, vocal speech in public and private, billboards and pamphletting. The Reno ruling holds that the Internet is at least as protected as other media.

Spamming is, of course, a legitimate problem. However, it is not one that can be adequately addressed by broadly worded legislation. Rather, it must be tackled socially (e.g., by better educating the public about the risks of doing business with spammers, a large proportion of which are frauds) and tackled technically. On the technical side, there are many solutions to the spamming problem that are being implemented and tested already. This is the job of Internet technical standards bodies, such as the Internet Engineering Task Force (IETF). Unfortunately, A.B. 1629 derails these processes.

The biggest difficulty with this legislative "solution" to the spam problem stems from the very definition of spam itself. The bill defines spam as "unsolicitied commercial e-mail." However, it is not the commercial nature of the messages that make them invasive, but rather it is the volume of the messages. Any anti-spamming law must recognize that only in bulk does e-mail approach the nuisance level of telemarketing, and that the online and telephonic media are radically different. A law that attempts to prohibit or regulate person-to-person e-mail, even of a commercial nature, does not solve the real problem and fails several constitutionality tests.

In summary, our principal concerns with the A.B. 1629 anti-spamming bill include:

• The definition of "commercial" is unconstitutionally vague and overbroad. It would easily snare nonprofit organizations and religious and political speakers if they happen to promote in their e-mail any product or service whatsoever for sale or distribution. The bill also attempts to regulate non-bulk, single-message e-mail from one individual to another. Therefore, the bill unconstitutionally restricts more speech than is necessary. Furthermore, many "free" e-mail services are only able to provide their products by attaching paid advertising to users' outgoing messages, inadvertently making their users spammers under the current definition of "commercial."
• The fines and penalties are far too severe, especially for non-bulk mailings of a single advertisement. A simple civil suit model would be far more appropriate, grounded in proof of demonstrable harm to the recipients.
• A.B. 1629's main focus is on the protection of Internet service provider (ISP) resources. As a result, it fails to take into account whether the recipients have been harmed in any way. This raises two problems: 1) there is no mechanism for wronged recipients to receive relief; and 2) a person could be sued by an ISP for sending materials that the recipients were actually happy to receive. Yet another problem in this regard is that the focus on ISP property rights essentially legitimizes spam by creating a pay-to-spam market incentive structure, and, worse yet, may set the stage for a pay-to-send-to-our-users structure in which any message might be refused delivery without a payment to the receiving-end ISP. This could undermine the openness and useability of the Internet.
• The bill does not provide enough defenses and exemptions. Any anti-spamming measure needs to let people off the hook for simple errors or unwitting hiring of a spammer as one's advertiser. The bill's lack of a requirement of criminal intent is unjust.
• The bill threatens mailing list forums and online discussions. The legislation fails to take into account multi-party e-mail forums (which typically accept a message from one subscriber and redistribute it to the private e-mail boxes of other subscribers) and how they would be affected. As currently drafted, the bill enables one member of such a forum to curtail the speech of another who has sent an advertisement to the forum, even if the advertisement is relevant to the forum discussion and the forum owner has given permission for the ad to be posted there.
• The bill fails to clearly delineate between the message body (content) and the message headers and "signature" files. The statute improperly treats the contents of any portion of the message as regulable content if it consists of advertising.
• The bill exempts bulk mail sent without commercial intent. Rather than being flooded with ads, Internet users could be innundated with religious and political propaganda (the oldest, and an increasingly common, form of spam) and other junk mail. Because of this, A.B. 1629 fails the requirement that it "in fact alleviate [the asserted] harms in a direct and material way." See Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 644 (1994).
• The bill violates the Commerce Clause of the U.S. Constitution because it would restrict (indeed, was specifically designed to restrict) interstate as well as intrastate communications. State statutes similarly aimed at regulating online content have already been struck down in federal courts on Commerce Clause grounds. See, e.g., American Library Association v. Pataki, Civ. Dkt. 97-0222 (S.D.N.Y. 1997) and American Civil Liberties Union v. Johnson, Civ. Dkt. 98-474 (D.N.M. 1998).
• Giving a receiving ISP a cause of action against off-site spammers (using another ISP to send) who do not have contracts with the receiving ISP is problematic for a couple of reasons. First, there is no notice or warning to potential defendants. In addition, it is an illegal expansion of contract law to allow a party to enforce contract provisions against a party where there is no privity.
• Amid a series of unrelated computer crime provisions (many if not most of which are duplicative of existing law), there lies a strange prohibition on copying files and data, even if they do not reside on computers. This section amounts to a redefinition of copyright law that is wholly inappropriate. Online copyright is a hotly contested issue in Congress and in international treaties and cannot be resolved with a single paragraph in a state anti-spamming and anti-cracking bill.
• The bill's exhortation to judges to "consider prohibitions on access to and use of computers" when sentencing defendants calls for punishment that is unconstitutional under Reno v. ACLU. Prohibitions on the use of computers is directly analogous to ordering that defendants be denied access to books, pencils and paper, or the use of their voices, as conditions of their sentences.

As you can see, there are many reasons to be concerned about A.B. 1629. The Electronic Frontier Foundation urges you to stand up for free speech rights and veto A.B. 1629. We appreciate your consideration and look forward to working with you on this important issue. Please feel free to contact me if I can provide you with any further clarification of our concerns.

Respectfully yours,

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Barry Steinhardt
President, Electronic Frontier Foundation

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