Harms: (its not a good idea)
So, would political solicitations be prohibited as well? Most of the mail traffic is a solicitation of one sort or another. People are in business, and small business is the the principle beneficiary of email advertising, due to its low cost and ease of entry.
Such a prohibition unfairly denies email to small entreprenuers. Not only that, but since the "internet" is by defintition "interstate", states have no juridiction to regulate the content of internet traffic, according the constitution. The right to regulate interstate commerce is given to the Congress of the United States, which has mostly delegated that authority to the Commerce Department.
Such laws merely bring ridicule and shame to a state, such as the foolish Georgia law which prohibits all sorts of things (and which is in the courts being struck down). They are written by people who don't have a clue, and it just brings stupidity to national attention.
Advertisers have no right to operate sound trucks, and advertisers have no right to send unsolicited faxes. An anti-spam law would make it a civil offense to send unsolicited advertising by email, just as United States Code, Title 47, Chapter 5, Subchapter II presently makes it a civil offense to send unsolicited advertising by fax.
In fact, they do have a right to operate sound trucks, organize parades, and other demonstrations. They may need to get permits, but permits ultimately cannot be denied for legitimate purposes. It might be possible for the US Congress to require one to get Spam permits, but spamming can't be flatly prohibited. Spammers who sell real products and services can't be prevented from contacting you. Its their right under the first amendment to do so.
Nor can panhandling, as we learned just recently in Harvard Square. Other people have the right to ask you for money. They can ask in person, they can write a letter, they can put an add in a paper, they can hire an airplane to pull a sign. They can also send you email.
I believe that para 227 (or most of it) was just struck on Freedom of Speech grounds in California a week or so ago.
227 was so far off base that not even the Chinese (no one else on the planet, to my knowledge) have similar restrictions, despite their great concern about the internet bringing in "unwanted" information. And unbound by FOS, they could pass such a law. According to 227, if I called you without your prior consent, you could charge me $500.00 or actual monetary damages, whichever is greater. That is truly ridiculous, not to mention a violation of my rights.
If someone handed you a piece of paper, could you charge them the cost to dispose of it? What if a stranger says hello? What if they come to your house and knock on your door? Of course not. Clearly, you cannot make these activities illegal. Why should anyone think they can make them illegal if there are electronics involved?
Freedom of speech does not imply that an advertiser may use any means of delivery, such as repeatedly calling you at home. Or sending you unwanted email.
If fact it does. California tried recently to prohibit telemarketing. It was struck down. Freedom of Speech means people cannot be prevented from contacting you by reasonable means. Letters, flyers, trade shows, parades etc are all reasonable means. As is email. Repeatedly calling you at home, such as might happen with collection agencies, can be harassment. Getting a hundred different solicitations is not harassment, though you might still be annoyed, thats your problem.
USC Title 47(5)(II)(para 223) prohibits obscene or harassing telephone calls. Harassment is not protected speech because the first amendment does not enable one to commit crimes, such as yelling "fire" in a crowded theatre, or "bomb" in an Airport. Obscene, harassing telephone calls are recognized as a crime. On the other hand it does not prohibit 1-900 phone sex services from operating, even though they may be obscene.
Further, one might recognize that para 223 is "US Code" and that telephone calls involve interstate commerce, and thus according to the Constitution the US Congress has authority to pass a law defining this sort of crimminal activity as a crime with a punishment.
Even so, I think para 223 is a bad idea because it slightly erodes the first amendment (for perhaps a good cause), and is a worse idea because it erroneously leads people to believe it can be eroded even further. More importantly, I think it is a rather ineffective deterent to crime. I doubt potential rapists shudder in their boots when they think of being charged with violating this law.
On the other hand, just as clearly, obscene, threatening, anti-social behavior cannot be tolerated in a civil society. So I would prefer a different approach from (merely, and I think ineffectively) restricting their obscene speech. The fear of the victim is the implied or explicit threat of physical abuse. Stopping the speech but not the threat of physical abuse seems fairly ineffective. I sort of doubt this actually deters much crime. Why don't we identify potential rapists, and use our lawful government powers of finding medical incompetence to put them in programs to cure their anti-social deviance? Gee, that might significantly the problem and we would have to lay off police and phone regulators. Oh no. Can't do that.
Thats almost like the Boston Police "Stroke of Genius": Arrest the people who have outstanding arrest warrants and get a tremendous reduction in the crime rate. Now who would'a thunk of that? Not I. I'm no expert. I would've thought it would take a special task force millions of dollars and years to analyze the makeup of the community, and the complex interelationships of various things. I would've thought that then we would have to eliminate the right to be secure against unreasonable search and seizure so that police can tap phones and raid homes with storm troopers, free from responsibility. Yep. Thats what I would've thought. I never would have guessed we only need to arrest the people for which there are already arrest warrants. A simple solution? Arrest the crimminals? Sheer genius, I tell you. But I digress.
>Dean Anderson replied:
>D> USC Title 47(5)(II)(para 223)
>D> http://www.law.cornell.edu/uscode/47/223.shtml prohibits obscene or
>D> harassing telephone calls.
>
>Paragraph 223 is irrelevant. Paragraph 227 prohibits unsolicited fax
>advertising. I'm sorry, I should have been more specific.
I believe that para 227 (or most of it) was just struck on Freedom of Speech grounds in California a week or so ago.
The Georgia law prohibited certain content, which is clearly unconstitutional. H.4581 prohibits a means of delivery (like the prohibitions against sound trucks), not content.
Georgia also prohibited other quote "stupid" unquote things. For example they prohibited the use of trademarks in email without express written permission, again infringing on the power given to the US Congress in the constitution to regulate such things, as well as being a silly restriction, since IBM is a trademark and thus one cannot (under Georgia Law) send email to IBM.Com from here in Boston using MCI or ATT phone lines, since the packets will (most likely) travel through the MCI and ATT switching facilities in Atlanta. That is, without express written permission to do so in advance. Total stupidity. Thar' be morons in the Georgia legislature. Does anyone disagree? (Actually, I just violated that law, since this email message will be carried through the Atlanta exchange.) Oops, OSF is a trademark. Did you all get written permission from OSF to use "osf_alums". Neither did I. Damn. 4 more counts. Jeez. This might make me a repeat offender, and thus a felon. Damn. Damn.
The Mass. bill prohibits "commercial" content. Whats the difference? Content is content. There is no constitutional means to separate one type of content from another type. The constitution does not say that "private, non-commercial speech shall not be infringed".
I suggest the Mass legislature first try to ban junk mail, and see what luck it has. (I think it's already been tried and failed due to FOS).
Of course H.4581 violates the first amendment. Not only that, but the constitution gives the power to regulate interstate commerce to the Congress of the United States. The Mass State Legislature does not have a single leg to stand on, and the US Congress can not violate the first amendment. Thar' be morons in the Mass. legislature. But then, the Mass Legislature decreed by law that PI is not a trancendental number in massachussetts. So it would be the first time. It's probably the lead in the water.
This is just one more stupid attempt at pointless regulation that we don't need.
The Mass attempt is doomed to failure, and will only identify Patrica Jehlen as an idiot in the future. But there is a real danger here.
The danger is that by attempting to erode the Bill of Rights, we do eventually erode our rights, which define the United States as a Free Society, and not a Police State. It is bad enough when we abdicate our freedoms to "protect children" because parents are too lazy or otherwise unable to supervise their children, but it is even worse when we abdicate our freedoms for the "convenience of not having to use the delete key so often"
Even though we may not use certain freedoms, the principle of their existence is usually fundamental to freedoms that we do use. Eroding the principle erodes the freedoms we do use. Perhaps one day due to continued erosion, political parties won't be able to advertise in the paper or on the net; whistle blowers won't be able to report corruption by anonymous posting. Then what? Isn't that what we call a police state? Isn't that what we are trying to prevent happen in Hong Kong? (For those not uptodate on foriegn affairs, the Chinese plan is to eliminate 33 of the pro-democracy legislators, curb public demonstrations, control mass media, and send 4000 troops to Hong Kong)
So if we restrict freedom of speech, and freedom of press, and put 100,000 more police on the streets, won't it make us just like the Chinese? Then how long before a Tianamen Square? 50 years? 100 years? But if we become just like them, it will happen eventually.
Kind of stupid to erode our freedoms over spam, don't you think?
I think what really disturbs me is that a number of legislators don't see this as a violation of Freedom of Speech.
What on earth makes people think that rights that exist using air as a medium suddenly cease to exist if one uses electricity as a medium? Its crazy. The constitution doesn't say "The freedom of speech shall not be abridged as long as one is using air as a medium" Quite the opposite. It was expected to apply to mediums of voice and paper. It is meant to be a generally applied right (hence constitutional "bill of rights" and not "laws of the first congress"). How can people come and say its a right in air and paper, but not electronic? If we someday invent subspace radio (ala startrek), will we have to again question whether one has a right of freedom of speech in subspace? I hope not.
>P.S. For more information on spam, see:
> http://www.cauce.org
> http://spam.abuse.net/spam
>
Now, would this be prohibited spam? If not, why not? What about usenet news groups, where there are many readers? What about IRC? Can I write irc or talk messages to someone without their consent? Apparently not in Massachussets. These things are "spam" They can all be done in a commercial context (osf-alums sees a lot of "commercial" traffic (job hunters, job ads, which would appear to be illegal after H.4581).