Unsolicited
commercial e-mails, also known as “spam” has plagued the internet for decades,
burdening consumers. In a 2016 study by Cisco Systems, research found that, “unsolicited
e-mail accounts for 40 billion spam messages a day (86 percent of the world’s
e-mail traffic)” (Tedford and Herbeck 233). This is ridiculous! Unwanted
e-mails and advertising are the bulk of what consumers absorb on a regular
basis. Also, unlike other commercial adds, such as newspaper ads or TV ads, it
is almost impossible for consumers to avoid it. Spam is different from
traditional advertising, as laid out in our textbook. First, spam cost almost
nothing, giving them the ability to send more ads. Second, the maintenance of
the network, adding extra bandwidth, consumes most of the cost of sending spam.
Last, it is often difficult to identify the source of spam and avoid it
(Tedford and Herbeck 234). Since spam has become so prominent in our commercial
society, many companies have attempted to block it. In the case, Cyber Promotions v. American Online,
Cyber Promotions, an online advertising company, sent millions of unsolicited
email ads on behalf of their clients. AOL strived to block all incoming mail
from Cyber Promotions to protect its users. In turn, Cyber Promotions argued
AOL restricted their right to free speech. The content of these unsolicited e-mails
was not divulged and therefore the Central
Hudson test was not applied. Nevertheless, the court ruled in favor of AOL,
stating that, “although the government cannot censor expression, AOL did not
have to provide the means for anyone to reach its subscribers” (Tedford and
Herbeck 234). This may have been a win for companies against unsolicited
commercial e-mails, but it did not stop the constant flow of spam.
Instead, spam has extended its
internet platforms over the years to include social media sites and does not
seem to be disappearing anytime soon. As a result, many states have attempted
to combat this through anti-spam statutes to regulate the sending of
unsolicited commercial e-mails. Unfortunately, this has brought little to no
results, in part to these anti-spam statutes only covering e-mails and not
social media. Additionally, many of these anti-spam statutes have been
challenged on constitutional grounds. For instance, Jasmine E. McNealy
discusses the case of Jaynes v.
Commonwealth of Virginia in her article “Spam and the First Amendment
Redux: Free Speech Issues in State Regulation of Unsolicited Email”. In this
case, the Supreme Court allowed the Virginia Supreme Court’s decision to stand,
“which found the unsolicited email provision of the Virginia Computer Crimes
Act unconstitutional”. This is just one of many cases in which the state anti-spam
laws were found unconstitutional.
In 2003, the CAN-SPAM Act was passed
and according the Federal Trade Commission is, “a law that sets the rules for
commercial email, establishes requirements for commercial messages, gives
recipients the right to have you stop emailing them, and spells out tough penalties
for violations”. Although it gives consumers the ability to opt out of
receiving future emails and requires advertisers to honor that request, it is
still easy for spam to go around it (often they can change the sender or title,
etc…). In all, there still seems to be the need for the improvement of blocking
and regulating spam in order to protect consumer interests.
McNealy, Jasmine
E. “Spam and the First Amendment Redux: Free Speech Issues in State
Regulation
of Unsolicited Email.” Taylor &
Francis Online, 2017, p. 351-373. http://www.tandfonline.com/eprint/DdUVcVJ5JFY4JJMezvFw/full
Tedford, Thomas
L., and Dale A. Herbeck. Freedom of
Speech in the United States. Strata
Publishing,
Inc., 2017.
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