This legislation would prohibit the misidentification of origination and routing information related to an unsolicited commercial electronic mail (UCEM) message; it would also provide a civil right of action for violating the UCEM or bulk electronic mail policy of an internet service provider.
While the New York Civil Liberties Union recognizes the government’s legitimate interest in regulating bulk e-mail to prevent the imposition of significant costs on internet service providers (ISP’s) or to prevent fraudulent advertising, the provisions in this bill would attempt to further these interest through ineffective means which clearly violate the freedom of speech guaranteed by the First Amendment of the Constitution.
Commercial, anonymous, and internet speech are all protected by the First Amendment. This bill would violate those protections, while also proscribing much non-commercial and incidentally commercial anonymous speech. Additionally, this bill would not significantly reduce the volume of UCEM or combat fraudulent advertising through UCEM.
The Supreme Court has held that limitations on commercial speech must meet the following test to be considered constitutional.
“The State must assert a substantial interest to be achieved by the restrictions on commercial speech. Moreover, the regulatory technique must be in proportion to that interest. The limitation on expression must be designed carefully to achieve the State’s goal. Compliance with this requirement may be measured by two criteria.
First, the restriction must directly advance the state interest involved; the regulation may not be sustained if it provides only ineffective or remote support for the government’s purpose. Second, if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restrictions cannot survive.” Central Hudson Gas v. Public Service Commission, 447 U.S. 557 (1980) at 564.
S.1680 fails this test in three ways. First, the regulatory technique used is not in proportion to the State’s interest. Second, the bill does not directly advance the State’s goal of limiting UCEM and third, that goal could be equally well served by other, less restrictive means. Additionally, the bill runs afoul of the constitutional protection accorded anonymous speech.
The Bill is not Narrowly Drawn to Achieve the State’s Interest
The definition of “commercial electronic mail” included in the bill is grossly overbroad. Section 492 of the bill includes in its definition all e-mail that “contains an advertisement for the sale of a product, service or real estate,” or which “promotes the use of or contains a list of one or more internet sites that contain an advertisement [for the sale of a product, service or real estate].” The first clause of the definition would include e-mail with any commercial component, no matter how marginal that component may be to the content of the message.
Even more broad are the class of messages included in the second clause. They would comprise all messages that have a link to a website with any type of advertisement. Many organizations, including non-profit, religious and charitable organizations, include a link to their own website in all of the e-mail messages that they transmit, and many of these websites contain advertisements, either for their own products such as mugs and t-shirts or as “banner” ads sold to defray the costs of the site’s upkeep. Under the definition in the bill all of these messages would be considered “commercial electronic mail.”
Furthermore, the bill’s definition of “commercial electronic mail” would include all transmissions no matter their number. Someone who sends even one prohibited UCEM message would violate the statute. Surely such a definition cannot be considered to have been narrowly tailored to further the goal of limiting the dissemination of UCEM which is distributed in a high enough volume to congest computer networks.
The bill would also give all Internet Service Provider’s UCEM and bulk e-mail policies the force of law by allowing actions for civil damages to be lodged against those who violate such policies. There are literally thousands of ISP’s that provide service in the United States. Given that, an e-mail message sent in violation of even one ISP policy could result in the imposition of a civil judgment against the sender. This provision would severely chill protected speech.
The Bill Does not Directly Advance the State’s Goal
The strategies set out in this bill for furthering the State’s indicated goals – reducing the congestion of internet communication networks and discouraging “illegitimate” e-mail solicitations – are only tangentially related to those goals. Section 493, clause one, of the bill prohibits the transmission of UCEM that “misrepresents any information in identifying the point of origin or the transmission path of the commercial electronic mail message.”
This prohibition of anonymous UCEM messages would in no way limit the amount of UCEM transmitted over any network or insure the veracity of the solicitation. This provision would limit UCEM only by disallowing its dissemination by those who for whatever reason wish to remain anonymous.
As a second strategy the bill would prohibit any person from “[using] or [causing] to be used an interactive computer service’s service or property, [...] in violation of the interactive computer service’s policy restricting the use of its service or property for the transmission of unsolicited commercial electronic mail, or bulk electronic mail.” Section 493 (ii). The bill would give these policies the force of law, but would in no way ensure that such policies further the State’s goals in a meaningful way.
The State’s Goal Could be Served Equally Well by Less Restrictive Means
UCEM has been a source of frustration to internet mail users for some time. As a response to this frustration a number of self-help strategies have been developed by both e-mail users and software developers to combat UCEM. It is now common practice to set up a separate “junk” e-mail account in order to curtail the UCEM that one receives. It is also generally known among e-mail users that responding to UCEM messages is a bad practice if one wishes to reduce their frequency.
Additionally, over forty commercial programs now exist that can filter UCEM messages out of electronic mailboxes or that can filter them out of the mail being received by a computer network’s electronic mail server. These applications provide relief both for individual computer users and for network administrators.
Happily, there are also new tools that have been and are being developed that can give e-mail users complete control over whose e-mail messages they are willing to receive (so called “challenge/response” and “white list” applications), and that use novel strategies to filter out virtually all unwanted mail while letting every desired message pass through the filter.
Besides self-help strategies, the New York State Legislature has already introduced bills that offer two additional methods for avoiding UCEM messages. These alternatives are significantly less restrictive of free speech than is the regulatory scheme proposed in this bill.
On their face they also seem to be more effective. One of these proposals would expand New York State’s existing “do-not-call” telephone solicitation registry to include UCEM, giving individuals the ability to decide for themselves if they do or don’t want to receive UCEM messages.
The other would prevent the sale of e-mail addresses without the affirmative consent of the address holder. E-mail addresses and the ease with which they are exchanged is the lifeblood of UCEM transmitters; without addresses messages have no recipients. Both of these alternative legislative solutions would be less restrictive of speech, and they would both have the laudable effect of enhancing citizens’ privacy.
The existence of so many effective and less restrictive means for limiting or ending altogether the UCEM messages that an individual or organization receives makes reliance upon them prudent. Given the constitutional constraints upon the government’s limiting of commercial or anonymous speech, reliance upon these alternatives is imperative.
The Bill Violates a Persons Right to Speak Anonymously
This bill seeks to further its goal of limiting UCEM in part by proscribing anonymous speech. The Supreme Court has held that such speech is protected by the First Amendment. Talley v. California, 362 U.S. 60 (1960); McIntyre v. Ohio Elections Commission, 115 U.S. 1511 (1995). And that protection has been applied to speech on the internet. American Civil Liberties Union of Georgia v. Miller, 977 F.Supp. 1228 (N.D.Ga. 1997). That case enjoined the enforcement of a statute similar to S.1680 in that it sought to proscribe internet communications that falsely identified the communicator regardless of whether or not the communication was fraudulent.
The court in that instance found that, “the statute was not drafted with the precision necessary for laws regulating speech. On its face, the act prohibits such protected speech as the use of false identification to avoid social ostracism, to prevent discrimination and harassment, and to protect privacy, ...” Ibid. at 1233. The NYCLU finds that under the same analysis the prohibitions against anonymous speech that are provided for in this bill will not pass constitutional muster.
For the forgoing reasons the NYCLU urges the legislature to defeat S.1680.