US ruling boosts spam fight

By Declan McCullagh, CNET News, 24 March, 2003 12:11

NEWS

A federal appeals court said on Friday that a law restricting junk faxes was constitutional, setting a precedent that favours legal attempts to restrict unsolicited email. The Eighth Circuit Court of Appeals reversed a lower court's ruling, concluding that a 1991 federal law banning unsolicited fax advertising did not violate the First Amendment's guarantee of freedom of expression. Congress' goal of "restricting unsolicited fax advertisements in order to prevent the cost shifting and interference such unwanted advertising places on the recipient" was reasonable, a three-judge panel ruled. The decision could be important in the growing legal tussles over spam. If the lower court's year-old decision had been upheld, it would have showed that at least one federal appeals court took a dim view of the approach used by some antispam laws. A junk fax typically costs the recipient more and is more intrusive than a single piece of junk email, and receiving a fax ties up a phone line. The appeals panel also stressed that the law reasonably tried to combat the "cost-shifting" that happens when unsolicited faxes consume a recipient's ink, toner, and paper -- an economic argument that mirrors that made against bulk unsolicited email. Foes of spam point out that it forces companies to spend money on filters, buy larger hard drives to store incoming email and lease fatter connections to handle the deluge. Ray Everett-Church, a privacy consultant at ePrivacyGroup.com and a board member of the Coalition Against Unsolicited Commercial Email, applauded the decision. "It certainly reinforces the argument that many have made for a long time, which is that federal regulations banning unsolicited email could be held constitutional," Everett-Church said. "The cost involved in shifting the advertising cost from sender to recipient is a substantial government interest -- a regulation restricting unsolicited advertising could be enacted constitutionally." The federal law at issue in this case, the Telephone Consumer Protection Act (TCPA), bans using "any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine." The case arose out of a lawsuit brought by the State of Missouri against American Blast Fax and Fax.com, which charge clients to send unsolicited advertisements to potential customers. The two companies argued the TCPA was unconstitutional because of a 1980 Supreme Court ruling that extended limited First Amendment protections to commercial speech. Many states have enacted antispam laws, but the US Congress never has. Even if state antispam laws are acceptable under the First Amendment, some courts have said they may run afoul of the US Constitution's Commerce Clause, which gives Congress the power to regulate interstate commerce. A spokesman for Fax.com could not be reached for comment. A representative said the company shut down early on Friday because of the war against Iraq.

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