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op-ed on Spam

Pushing and Pulling the First Amendment

This Op-Ed piece appeared in the San Francisco Examiner on August 9, 1998. The Examiner has kindly agreed to allow CPSR to post this piece on its website.

Pushing and Pulling the First Amendment

by Jeff Johnson, former Chair of CPSR

Two recent news stories about the Internet illustrate the complexities of understanding how the U.S. Constitution -- particularly the 1st Amendment guarantee of free speech -- impacts our rights in cyberspace.  One news story concerns efforts by the Federal Trade Commission to counter unsolicited commercial email (also known as "spam"), which increasingly jams the in-boxes of Internet users.  The other story concerns the uproar caused by a website that was scheduled to show a live video feed of a young couple -- supposedly both virgins -- having sex.

Both email spam and web sex have detractors and supporters.  In both cases, supporters claim free-speech rights to support what they are doing. However, the key to understanding how the First Amendment applies to these two situations lies in realizing that email and the Web are fundamentally different media, even though both use the Internet as a transport mechanism.

Email is mainly a "push" medium, meaning that the messages you receive are not fully under your control; they are whatever others decide to send to you, provided they have your email address.  In contrast, the Web is mainly a "pull" medium, meaning that in order to see information posted there, you must pro-actively point your browser at it, by specifying a Web address, using a search facility, or following a link from another page.  This difference is crucial in determining the applicability of the First Amendment.  Unfortunately, it is often overlooked by policymakers, analysts, and reporters.

*The First Amendment and Email Spam

The Federal Trade Commission recently recommended that companies that send unsolicited commercial email (i.e., "spam") be prohibited from disguising the content of the email or the return address.  However, the Commission declined to propose an outright ban on spam, citing free speech issues.  I am a strong First Amendment supporter, but it is clear to me that sending spam is in no way protected by the First Amendment.

The First Amendment gives anyone the right to say whatever they want to say, but it does not give them the right to stand at my front door and shout it through my mailslot.  It gives anyone the right to print whatever they want to print onto a flyer, but it does not give them the right to toss the flyer into my window.  It gives anyone the right to write email advertisements hawking Russian wives, phone sex, get-rich-quick schemes, or anything else, but it does not give them the right to send such advertisements to my email inbox, for which I have to pay storage and downloading costs.

In other words, the First Amendment protects *content*, not delivery methods.  But the undesireable feature of spam is the *delivery method*, not the content.  Recipients of spam are not complaining about what is *in* the unsolicited ads they receive, but rather that they are forced to download and wade through junk mail they did not request.  Thus, sending email spam has nothing to do with freedom of speech.

*The First Amendment and Web Sex

In the web sex story, a young couple announced plans to display their first sexual liaison "live on the Internet."  The encounter was exposed as a scam, prompting the company that had planned to host the event to withdraw its support.  Nonetheless, publicity surrounding the event sharpened controversy over websites containing sexual content.

Newpapers inaccurately reported that the encounter would be "broadcast over the Internet".  In fact, the encounter was to be posted on a website.  The Web does not broadcast anything.  The Internet does provide broadcast mechanisms, but the Web is not one of them.  Posting information on the Web is like posting it on a fencepost or bulletin board:  only those who take the trouble to visit a site see what is posted there.

Outrage about something posted on a website is like the old joke about the little old lady who complained to the police that there was a naked man outside her window.  When the responding officer looked out of her window and saw no naked man, the indignant woman said: "Here, look through these binoculars."

The Web is the perfect example of a medium that is protected by the First Amendment -- moreso even than most media that existed when the Bill of Rights was drafted.  It is a medium in which people have a right to post whatever they want (as long as the content doesn't violate copyright, libel, or obscenity laws), but others are free to ignore them and can easily do so -- simply by not visiting those websites.  For example, viewing sexual acts on my computer screen doesn't appeal to me, so I have never visited a sex website and don't plan to.

This is why the Communciations Decency Act, passed by the U.S. Congress as part of the Telecommunications Reform Bill of 1996, was voided by the courts.  It violated the First Amendment because it attempted to restrict what people can put on websites, beyond the restrictions already imposed by obscenity laws.

*The Internet is Not a Medium; It is a Conduit for Diverse Media

The Internet is an infrastructure for carrying communication as diverse as private email, public web-sites, electronic funds transfers, cable TV broadcasts, point-to-point phone calls, newsgroup and bulletin-board postings, software purchases, automatic software updates, document delivery, multi-person chat rooms and games, unsolicited bulk email, etc. Just as in the non-online world, these different forms of Internet communication call for very different rules and standards.

But many policymakers do not understand the distinction between these different types of communications.  To them, it's all just "stuff going over the Internet", subject to the same rules, regulations, standards, guidelines, and Constitutional protections.  Thus, some policymakers mistakenly believe that spammers have a First Amendment right to clog our email inboxes with unwanted junk mail, and that "pornography on the Internet" means that smut is being broadcast into everyone's home computers.

It seems that we have some educating to do.

August 14, 1998

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