Unsolicited e-mail is a growing concern among "netizens" (citizens on the Internet).⁽¹⁾ Just as junk-mail clutters conventional mailboxes, unsolicited e-mail can clutter e-mailboxes. Recipients of both must spend time sorting through and disposing of unwanted material. Unsolicited e-mail is sometimes referred to as "spam"⁽²⁾ and one who sends it is said to be "spamming." The term is intended to carry a negative connotation.⁽³⁾ Some people consider any unsolicited e-mail as "spam."⁽⁴⁾ However, for the purpose of this paper the term is limited to unsolicited commercial e-mail or "UCE."⁽⁵⁾

The growing concern stems from the fact that some recipients do not know how to reduce the quantity of unwanted UCE they receive.⁽⁶⁾ However, some recipients become vigilantes and use methods to "kill" spammers (senders of UCE)⁽⁷⁾ such as sending large quantities of unsolicited e-mail back to the spammer, thus overloading the spammer's Internet Service Provider (ISP).⁽⁸⁾ Other vigilantes set up blacklists of spammers in order to publicly denounce them and their practices.⁽⁹⁾

Unsolicited commercial e-mail may, in fact, be illegal. At least an argument can be made that UCE is banned under existing federal law. The basis for this argument is the Telephone Consumer Protection Act of 1991 (TCPA).⁽¹⁰⁾ The act only prohibits the sending of unsolicited advertisements via "facsimile machines."⁽¹¹⁾ Of course, a computer is not a fax machine, and an e-mail is not a fax, however, one possible argument is that a computer with a modem, printer, and the proper software can function as a facsimile machine in such a way as to come within the TCPA's definition.⁽¹²⁾ Another argument is that e-mail, sent or received by the same computer that is capable of functioning as a fax machine, is the functional equivalent of a fax and should, therefore, be covered. Neither of these interpretations has yet been addressed or resolved by the courts.

There is also state legislation aimed at UCE.⁽¹³⁾ Nevada law creates a legal right in recipients to force a spammer to remove them from an e-mailing list.⁽¹⁴⁾ The states of Connecticut, Rhode Island, Massachusetts, and Wisconsin have introduced bills which propose to prohibit UCE."⁽¹⁵⁾

Not only are the states actively pursuing legislation while the TCPA argument fails to be addressed, other federal legislation is being proposed as well.⁽¹⁶⁾ Four bills relating to UCE are currently in Congress.⁽¹⁷⁾ One of the bills in the House of Representatives deals with the TCPA argument. The Netizens Protection Act of 1997 would amend the TCPA to specifically place restrictions on UCE.⁽¹⁸⁾

The purpose of this paper is to examine the legality of UCE from the perspective of both the TCPA of 1991 and the Netizens Protection Act of 1997. The conclusion is that the TCPA does not cover e-mail, and that the Netizens Protection Act's language, which attempts to restrict UCE, probably will be found to be unconstitutional.

To place these arguments in a relevant historical context, Part II provides a brief overview of the history of unsolicited communication and legislation designed to regulate it. Part III specifically examines e-mail, focusing on the advantages and disadvantages of this mode of communication for unsolicited advertisements. Part IV analyzes the argument that the Telephone Consumer Protection Act of 1991 makes UCE illegal. Part V analyzes the constitutionality of the Netizens Protection Act of 1997. Part VI provides an overview of other proposed federal legislation, focusing on the Electronic Mailbox Protection Act of 1997,⁽¹⁹⁾ and the Unsolicited Commercial Electronic Mail Choice Act of 1997.⁽²⁰⁾ Part VII argues that a total ban on UCE is unlikely and suggests remedies for some problems associated with UCE.

Unsolicited communications impose on personal space and time. To protect the individual's privacy, a number of legal rulings impose standards on particular types of unsolicited communications, particularly door-to-door solicitations, direct mail, telemarketing, and facsimile solicitations.

A . Door-to-door

Many residents consider door-to-door solicitation as something between an intrusion on their privacy and a simple annoyance. However, the U.S. Supreme Court protects this means of disseminating ideas as a valuable First Amendment right.⁽²¹⁾ As Justice Black explains, speaking for the Court in Martin v. Struthers:⁽²²⁾

While door to door distributers of literature may be either a nuisance or a blind for criminal activities, they may also be useful members of society engaged in the dissemination of ideas in accordance with the best tradition of free discussion . . . The dangers of distribution can so easily be controlled by traditional legal methods, leaving to each householder the full right to decide whether he will receive strangers as visitors, that stringent prohibition can serve no purpose but that forbidden by the Constitution, the naked restriction of the dissemination of ideas.⁽²³⁾

The Court continues to reverse overbroad state legislation that restricts door-to-door solicitations.⁽²⁴⁾ Of course, restrictions are permitted on the "time, place and manner" of door-to-door solicitations.⁽²⁵⁾ And the Federal Trade Commission permits those solicited to change their minds under its "cooling-off" rule.⁽²⁶⁾

B . Direct Mail

Although there are few regulations regarding direct mail, the Court continues to uphold the individual's right to privacy through an opt-out method.⁽²⁷⁾ Justice Burger emphasizes the individual's right to privacy when speaking for the Court in Rowan v. U.S. Post Office Dept.⁽²⁸⁾ He states, "In today's complex society we are inescapably captive audiences for many purposes, but a sufficient measure of individual autonomy must survive to permit every householder to exercise control over unwanted mail."⁽²⁹⁾

C . Telephone

Like door-to-door solicitation and direct mail, telemarketing--uninvited sales persons contacting customers in their homes by phone--is also subject to some restrictive regulations.⁽³⁰⁾ For example, there are time-of-day restrictions,⁽³¹⁾ and the caller must identify him/herself.⁽³²⁾ As with junk mail, householders may place themselves on "do not call" lists that must be respected by the telemarketer.⁽³³⁾

D . Facsimile

The TCPA prohibits the sending of unsolicited advertisements via facsimile machine.⁽³⁴⁾ This regulation is based on a "cost-shifting" rationale.⁽³⁵⁾ It shifts the cost from the advertiser to the recipient. That is, unlike junk mail, for which all printing and postage costs are paid by the sender, the recipient pays the cost of the paper, ink, and machine depreciation and maintenance associated with the sending and receiving of fax messages.

Although there are some restrictions on door-to-door solicitations, direct mail, and telephone solicitations for the most part unsolicited communications are protected by the First Amendment. The limits on unsolicited faxes are an exception--one grounded in the cost-shifting value of the technology. Other than that, the right of an individual to opt-out is viewed as adequate protection of privacy. Against this background we now turn to unsolicited e-mail communication.

Should unsolicited communications by means of e-mail be treated differently than other forms of unsolicited communication? Recognition of the advantages and disadvantages of e-mail communication will enlighten the decision making process.

A . Advantages
 

i. Reduction of cost

The delivery of messages, such as advertisements, consists of the costs of message development and distribution--either through broadcast channels, salaries of a sales force (either door-to-door or telemarketing), or the cost of materials and postage for direct mail campaigns. Similar to traditional forms of message delivery e-mail involves message development, however, the distribution costs are reduced. With Internet technology there is no need to spend money on materials, such as paper and ink, and there is no need to pay postage. This provides users with a quick, efficient means of communication at lower costs than any previous technology offered. For persons marketing products or services, the Internet provides the ability to reach millions of people for a fraction of the costs previously associated with marketing.

ii. Small business benefits

Many large corporations can afford to advertise through traditional means such as television, radio, or print. However, many small businesses do not have the capital to conduct large scale advertising campaigns. By substantially reducing the costs of message delivery, the Internet creates a medium in which small business and large business have the same capacity to reach consumers.

The capacity of a type of communication to be low cost and effective is important for the dissemination of ideas. As Justice Black points out when speaking for the Court in Martin v. Struthers,⁽³⁶⁾ "Door to door distribution of circulars is essential to the poorly financed causes of little people."⁽³⁷⁾ The fact that alternative (more costly) avenues of communication exist does not preclude this form of communication (i.e. door to door solicitation) from being protected by the First Amendment. Using this premise, can unsolicited e-mail communication be seen as essential to the poorly financed causes of little people?

Some small businesses are become profitable by using UCE.⁽³⁸⁾ Thus, it seems to be an effective form of communication for these business because recipients are receiving the messages and buying the products. For these small business owners, UCE seems like an ideal opportunity for small businesses to "level the playing field" when competing with large corporations. This low cost means of communication is essential for the "poorly financed little people" of small business when competing with large corporations.

iii. Reduction of environmental costs

The environmental costs of newspapers, magazines, and particularly direct mail campaigns is the destruction of trees and the filling of landfills.⁽³⁹⁾ Environmental Systems of America, an environmental consulting firm, claims, "If only 100,000 people stopped their junk mail, we could save up to 150,000 trees annually. If a million people did this, we could save up to a million and a half trees."⁽⁴⁰⁾

The direct marketing industry recognizes the environmental impact of direct mail and is taking action to use fewer materials, and materials which are more friendly to the environment.⁽⁴¹⁾ However, another method to reduce the environmental costs associated with direct mail campaigns is by using e-mail instead of traditional postal mail. If many newspapers, magazines, and direct mail campaigns switch to using e-mail the environmental costs will be greatly reduced.

i. Annoyance

The most prevalent disadvantage, as stated by recipients, is that UCE is an annoyance. The "annoyance" factor involves the time taken to download messages from servers, and the amount of time to sort through and delete unwanted messages. This is similar to the time it takes for recipients to sort through direct mail. The Consumer Research Institute projects that "Junk mail causes the average American to waste 8 months of his or her life just sifting through mail solicitation[s]."⁽⁴²⁾

The annoyance on the part of recipients of direct mail seems to be permissible as far as the Courts are concerned. In fact, the time taken to sort through unsolicited direct mail has been recognized as an "acceptable burden."⁽⁴³⁾

ii. Lack of target audience

Software technologies make it easy to "harvest" addresses without regard to targeting an audience.⁽⁴⁴⁾ With e-mail message distribution costing much less than traditional channels the sender often has little incentive to target an audience. However, targeting is becoming "a key issue for commercial e-mailers. Increasingly, shotgun-style unsolicited e-mailing is seen as largely ineffective."⁽⁴⁵⁾ Currently, steps are being taken to clean up the image of UCE and some advocates are encouraging more targeted mailings, others are recommending government regulation.⁽⁴⁶⁾

iii. Cost-shifting

Recipients of UCE must spend time connected to their service providers to download the e-mail messages. For recipients who pay for service on a minute-by-minute basis, this could conceivably add up to a substantial sum of money.⁽⁴⁷⁾ This demonstrates the rationale of "cost-shifting."⁽⁴⁸⁾

The argument that UCE also shifts cost to the recipients in other ways such as slowing down the entire network by utilizing transmission bandwidth and storage capacity holds some validity.⁽⁴⁹⁾ However, the actually cost to recipients is demonstrably vague. The "cost-shifting" rationale pertaining to unsolicited facsimiles is based on the actual cost of paper and ink.⁽⁵⁰⁾ The fax cost-shifting argument demonstrates "real" harm as opposed to "conjectural" harm.⁽⁵¹⁾

iv. Information overload

Perhaps the most substantial disadvantage associated with UCE comes in the form of what it can do to Internet Service Providers' computer networks. In a few cases the providers claim that UCE can effectively overload their computer networks and shut them down for periods of time.⁽⁵²⁾ In essence, some computer systems are incapable of handling large quantities of information at one particular time.

Due to the disadvantages for recipients, UCE is not accepted wholeheartedly in the online community. In fact, efforts are organized to make UCE illegal or at least regulate it.⁽⁵³⁾

There are a number of cases that relate to some of the problems associated with UCE.⁽⁵⁴⁾ These cases, however, often concern areas such as property rights, antitrust issues, deceptive advertising, trademark violations, and the First Amendment rights of Internet Service Providers to regulate and censor the information sent to their customers.⁽⁵⁵⁾ Although these cases relate to UCE, none directly challenge the legality of sending it.

However, in December 1994, a suit was filed against CompuServe after sending Robert Arkow an unsolicited commercial e-mail.⁽⁵⁶⁾ Arkow based his argument on the grounds that the Telephone Consumer Protection Act of 1991 prohibits UCE.⁽⁵⁷⁾ The case was settled out of court.⁽⁵⁸⁾

A. Overview

The Telephone Consumer Protection Act of 1991 places restrictions on the use of telephone equipment.⁽⁵⁹⁾ Among other things it expressly makes it illegal "to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine . . . ." ⁽⁶⁰⁾

It seems the interpretation of this is straight forward. The problem for unsolicited e-mail arises in how "telephone facsimile machine" is defined.

The term "telephone facsimile machine" means equipment which has the capacity (A) to transcribe text or images, or both, from paper into an electronic signal and to transmit that signal over a regular telephone line, or (B) to transcribe text or images (or both) from an electronic signal received over a regular telephone line onto paper.⁽⁶¹⁾

The language of the statute, taken as literally as possible, makes UCE illegal. A computer equipped with a modem and printer "has the capacity . . . to transcribe text or images (or both) from an electronic signal received over a regular telephone line onto paper."⁽⁶²⁾

The actions of the New York Consumer Frauds Bureau suggest this may be a valid argument.⁽⁶³⁾ In a case against Kevin Lipsitz they thought about using the TCPA to cite him for UCE. With a strong deception case, however, they decided not to pursue the TCPA argument.⁽⁶⁴⁾ As mentioned earlier, when Arkow filed a suit against CompuServe based on the TCPA argument it was settled out of court.

This out of court settlement suggests the argument may hold some validity. In fact, the TCPA argument is being heralded by Internet Service Providers such as The Kode Net System.⁽⁶⁵⁾ It claims that "spam" is already illegal under the current statute.⁽⁶⁶⁾ Proclaiming this to the world, however, is premature because the Courts have not addressed or resolved this argument.

B . Can the TCPA be read literally?

The TCPA may not be read so literally when applying it to e-mail is the propostion of New York Assistant Attorney General Eric Wenger. Referring to the Lipsitz case, he states, "Our first thought was, could the junk fax law be extended to junk E-mail . . . We thought it would be a stretch."⁽⁶⁷⁾ Mark Eckenwiler, a New York attorney, and a writer for NetGuide, admits that "the entire thrust of TCPA is to attack abuses of the telephone system, not intrusive marketing in general . . . why, if the statute is meant to apply to junk e-mail, did Congress even bother with the term 'telephone facsimile machine'?"⁽⁶⁸⁾

C . Purpose and Intent

E-mail communication existed at the time Congress adopted the TCPA. Nowhere in the language of the statute is e-mail mentioned.⁽⁶⁹⁾ This suggests that Congress did not intend for the TCPA to apply to e-mail.

House Representative Chris Smith believes that the TCPA does not cover e-mail. He has proposed an amendment to the TCPA which would extend it to explicitly regulate UCE. This revision is known as the Netizens Protection Act of 1997 and was introduced on May 22, 1997.⁽⁷⁰⁾

The Netizens Protection Act of 1997 amends the TCPA to include e-mail in the prohibition of sending unsolicited advertisements, which now applies to only "facsimile machines."⁽⁷¹⁾ The act does not, however, prohibit the transmission of commercial e-mail when the sender has a "preexisting and ongoing" relationship with the recipient, or if the recipient gives the "express invitation or permission" to receive commercial e-mail.⁽⁷²⁾ This act would render UCE illegal, except for users who opt-in.

Can e-mail be treated the same as unsolicited faxes? Can the cost-shifting rationale behind prohibiting unsolicited faxes be applied to unsolicited e-mail? Also, as with any restriction of commercial speech, can the Netizens Protection Act of 1997 stand up to the Central Hudson test--a test designed to clarify the constitutionality of legislation restricting commercial speech?⁽⁷³⁾

A . Cost-Shifting

One of the disadvantages noted earlier is the notion that UCE shifts the cost to the recipient. This rational, if it can be demonstrated to cause "real" harm, is a basis for banning unsolicited advertisements.⁽⁷⁴⁾ However, the cost-shifting argument as applied to e-mail is problematic. Flat rate Internet access subscribers do not incur out-of-the-pocket costs for the time it takes to delete UCE. Applying the argument to subscribers who pay for a standard amount of time each month is also problematic. For example, if someone pays for twenty hours of access per month but uses only eighteen hours, even with one full hour of downloading time due to UCE, the person does not economically suffer from cost-shifting. The cost-shifting rationale that applies to the paper and ink of receiving a fax is not applicable to unsolicited e-mail because the recipient is not required to print an e-mail message.

Another cost-shifting component, besides the paper and ink costs, is message-preclusion.⁽⁷⁵⁾ The message-preclusion argument, as applied to unsolicited faxes, suggests that desired transmissions of faxes are not received due to the fact that unsolicited faxes may be sent at the same time or that unsolicited faxes have effectively caused the fax machine to run out of paper. Thus, unsolicited fax advertisements are preventing recipients from receiving desired fax transmissions. Applying the message-preclusion rationale to UCE is also problematic. With e-mail, messages are delivered even though other messages are being delivered at the same time and paper is not required. Thus, the message-preclusion rationale does not seem applicable to e-mail.

Besides the fact that the cost-shifting and the message-preclusion arguments are problematic when applied to UCE, any legislation that restricts commercial speech should be examined on the basis of the Central Hudson test.⁽⁷⁶⁾

B . Applying the Central Hudson Test

A four-pronged test examines legislation that restricts commercial speech.⁽⁷⁷⁾ First, the Court ascertains the First Amendment concerns and whether the speech is protected. For commercial speech to be protected, it must be considered lawful activity and not misleading. Second, the governmental body restricting that speech must provide evidence of substantial governmental interest in restricting that speech. When these two conditions are met, the Court examines whether the regulation directly advances the governmental interest. Then whether the restriction is more broad than reasonable to serve that governmental interest is decided.

Not all commercial e-mail can be considered unlawful activity or misleading. Although much spam is misleading and unlawful, the judgment that UCE is mostly scams or money schemes⁽⁷⁸⁾ is not sufficient evidence to restrict an entire mode of commercial communication.

Existing governmental agencies and legislation can regulate the deceptive practices of some senders of UCE. The Federal Trade Commission regulates false and misleading advertisements. Cases are continuing to be settled regarding fraudulent and misleading UCE practices.⁽⁷⁹⁾ Advertisers running scams or participating in fraudulent activity will be prosecuted under existing laws. However, any UCE that is not misleading or unlawful is protected speech.

The fact that lawful, non-misleading UCE is protected under the First Amendment brings us to the second prong of the Central Hudson test, whether the government can provide evidence of substantial governmental interest in restricting UCE. Without the reliance on the rationale of cost-shifting, which is problematic, there is no substantial governmental interest that would demonstrate "real" harm which causes harm in a "direct and material manner"⁽⁸⁰⁾ on behalf of the recipients themselves. Thus, there is no substantial government interest that would suffice for the restrictions the Netizens Protection Act imposes.

If one could provide evidence of governmental interest in restricting commercial e-mail, the Netizens Protection Act of 1997 will ultimately fail the Central Hudson test because of the forth prong of the test. It would be deemed overbroad for regulation of protected speech. The Court continues to emphasize an opt-out method for unsolicited communications rather than an opt-in method.⁽⁸¹⁾ The Projects 80's, Inc. v. City of Pocatello⁽⁸²⁾ decision held that the city ordinances prohibiting door-to-door solicitations, except when a person places a "solicitors welcome" sign in the window, are overbroad and violate the First Amendment.⁽⁸³⁾ This is similar to the Netizens Protection Act ban on all UCE except for users who opt-in. Thus, the Netizens Protection Act of 1997 is considered overbroad and is unconstitutional.

Besides the Netizens Protection Act of 1997 there are two other bills in Congress that are specifically aimed at UCE. Although the Data Privacy Act of 1997⁽⁸⁴⁾ relates to UCE, it is more concerned with restricting the gathering and distribution of personal data and does not confront UCE directly. Therefore, it will not be discussed in this paper. This section examines the Electronic Mailbox Protection Act of 1997⁽⁸⁵⁾ and the Unsolicited Commercial Electronic Mail Choice Act of 1997.⁽⁸⁶⁾ Since it is not the purpose of this paper to examine and analyze these bills, this section is limited to a brief summary and discussion of the bills.

A . The Electronic Mailbox Protection Act of 1997

The Electronic Mailbox Protection Act of 1997 introduced by Senator Toricelli on June 11, 1997, prohibits using unregistered or fictitious e-mail addresses to send UCE. It requires that "Do-Not-Email" requests be honored by e-mailers.⁽⁸⁷⁾ The proposal also prohibits sending messages in bulk or mass e-mailings.⁽⁸⁸⁾

There is no foreseeable problem with prohibiting the sending of UCE from unregistered or fictitious addresses. If the sender is doing so the FTC should investigate fraudulent and misleading advertising. Likewise, precedent for honoring "Do-Not-Mail" requests is set.⁽⁸⁹⁾ This will certainly carry over into the e-mail medium.

The challenge for this bill comes in its prohibition of sending messages in bulk. Regarding this issue, it is likely that this act should be examined on the basis of the Central Hudson test.⁽⁹⁰⁾ Will the government show substantial governmental interest in prohibiting only unsolicited e-mail in bulk?

B . The Unsolicited Commercial Electronic Mail Choice Act of 1997

The Unsolicited Commercial Electronic Mail Choice Act of 1997 introduced by Senator Murkowski on May 21, 1997, requires a label of "advertisement" in the subject header to identify the message as an advertisement.⁽⁹¹⁾ The sender is also required to identify his/her name, physical address, e-mail address, and telephone number.⁽⁹²⁾ Furthermore, the bill would require Internet Service Providers to offer an e-mail filter that can block messages identified as advertisements.⁽⁹³⁾

This bill has some promising attributes. The requirement of sender identification would correlate to the requirements on telemarketers to identify themselves.⁽⁹⁴⁾ The subject header of "advertisement" may be a bit too broad for the purposes of effectively distinguishing between wanted and unwanted e-mail. As it stands, the filtering process is an "all or nothing" situation.

Some alternatives in the subject labeling requirements might be needed. Subject header labeling requirements such as "adv.health" or "adv.clothes" etc. could serve as a better means of filtering unwanted solicitations. For example, if someone does not desire any advertisements, the filter could be set to filter out all "adv." messages. However, if someone wishes to receive advertisements for health products, the filter could be set to let "adv.health" through and still effectively filter all others.

This paper argues that the Telephone Consumer Protection Act of 1991 does not render UCE illegal because the argument that a computer/modem/printer constitutes a facsimile machine is a stretch that was not intended. It also argues that the Netizens Protection Act of 1997 is unconstitutional. If adopted, it is unlikely to be upheld when challenged on the basis of the Central Hudson test and prior legislative action.

A . Where do we go from here?

Although the other proposed legislative acts have some intriguing attributes, the most promising legislation of regulating UCE may be some combination of the two previously discussed bills. The Unsolicited Commercial Electronic Mail Choice Act of 1997--with the modification of the subject labeling requirements has a possibility of being an effective means to control UCE.

B . Legitimizing Unsolicited Commercial E-mail

If UCE is to be legitimized and accepted as a lawful marketing practice, the disadvantages have to be resolved. The advantages of permitting UCE must outweigh, in the minds of the recipients, the disadvantages associated with UCE.

Besides the fact that the Courts recognize an "acceptable burden"⁽⁹⁵⁾ on behalf of the recipients of many unsolicited communications, the annoyance factor of UCE can be effectively dealt with through regulation. Adopting a version of the Unsolicited Commercial Electronic Mail Choice Act of 1997 should effectively handle the annoyance factor of unwanted e-mail. Imposing a subject header labeling requirement will inspire business to create mail filters which can detect and eliminate unwanted messages, reducing the annoyance of UCE recipients.

Regulation should also disperse the complaints about the "cost-shifting" considerations of UCE. By requiring the header label, users' filters will effectively eliminate unwanted e-mail advertisements. Thus, this will eliminate the downloading, sorting, and deleting time of unwanted UCE.

Utilizing filtering software and enforcing an opt-out regulation should encourage senders of UCE to use a target audience approach. The use of filters to bounce-back filtered out UCE as undeliverable mail to the senders, which will take up space on the senders computer, should elicit a more target audience approach for senders of UCE. This use of target audiences will reduce the amount of unwanted e-mail taking up space on servers.

An argument can also be made that if UCE is legitimized, businesses will create the required hardware, software, and filters to handle large quantities of e-mail. This, along with filtering bounce-back software, would effectively eliminate the disadvantage of information overloading computer systems. Thus, making UCE a legitimate marketing strategy will increase business interest in building networks to handle large quantities of e-mail. Larger, faster computer networks will benefit all netizens.

Once the disadvantages of UCE are effectively dealt with the advantages of the medium can be enjoyed. Legitimizing UCE will allow the voices of the "little people" to be heard.⁽⁹⁶⁾ Political fund-raising organizations, political interest groups, small businesses, large businesses, and other direct marketers will utilize this means of communication rather than direct "snail-mail."⁽⁹⁷⁾ Over time, this will reduce the environmental costs associated with newspapers, magazines, and direct marketing campaigns which will be better for the environment and humans worldwide.

__________________________

End Notes

1. Unsolicited e-mail is an e-mail message that was not previously asked for by the recipient.

2. Compuserve Inc. v. Cyber Promotions, 962 F.Supp. 1015, n1 (S.D. Ohio 1997). (concerning the term "spam" and its origination as applied to UCE states: "This term is derived from a skit performed on the British television show Monty Python's Flying Circus, in which the word 'spam' is repeated to the point of absurdity in a restaurant menu.")

3. Bill Weinman, The trouble with spam (Visited Apr. 8, 1998) <http://www.weinman.com/wew/spam/>.

4. Carl G. Kline, Spam On The Internet (Visited Apr. 8, 1998) <http://www.smartbiz.com/sbs/columns/kline8.htm>. (Discussing what "spam" means to recipients, Kline states "[I]t is unsolicited e-mail the receiver did not like.")

5. Unsolicited commercial e-mail or UCE refers to an "unsolicited advertisement" sent by e-mail. The term "unsolicited advertisement" as defined in 47 U.S.C. 227 (a)(4) is "any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission."

6. See generally, Stop mass unsolicited e-mail advertisements (Visited Apr. 8, 1998) <http://www.webcom.com/jac/stopjunk.html> (This site offers help to eliminate or reduce unwanted e-mail.)

7. See, e.g., Leslie Gornstein, Taking aim at spam,The Orange County Register (Dec. 21, 1997) (Visited Apr. 8, 1998) <http://www.ocregister.com/news/connect/1997/1297/122197/cover.shtml>.

8. Internet access and e-mail services are usually provided by Internet Service Providers (ISP). Individuals who subscribe to their services for a fee are granted access.

9. Axel Boldt, Blacklist of Internet Advertisers (Visited Apr. 8, 1998) <http://www.cco.caltech.edu/~cbrown/BL/>.

10. 47 U.S.C. 227, Telephone Consumer Protection Act (1991).
<http://www.law.cornell.edu/uscode/47/227.html>.

11. Id. at (47 U.S.C. 227(b)(1)(C) (1991)).

12. Id. at (47 U.S.C. 227(a)(2)(B) (1991)).

13. See, Rebecca Falcon, Spamming on the net: Freedom of speech vs. Right to privacy, paragraghs 16-19 (Visited Apr. 7, 1998) <http://www.law.stetson.edu/courses/computerlaw/papers/rfalsonf97.htm>. See also, State statutes and pending bills (United States) (Visited Apr. 7, 1998) <http://www.jmls.edu/cyber/statutes/email/state.html>.

14. Id. at paragragh 15

15. Id. at paragragh 19

16. Id. at paragraghs 16-19

17. David E. Sorkin, Unsolicited e-mail Statutes: Federal statutes and pending bills (United States), John Marshall Law School (Visited Apr. 9, 1998) <http://host1.jmls.edu/cyber/statutes/email/federal.html>.

18. Id.

19. S. 875, 105th Congress (1997) (The Electronic Mailbox Protection Act of 1997) (Visited Apr. 8, 1998) <http://host1.jmls.edu/cyber/statutes/email/empa1.html>.

20. S. 771, 105th Congress (1997) (The Unsolicited Commercial Electronic Mail Choice Act of 1997) (Visited Apr. 8, 1998) <http://host1.jmls.edu/cyber/statutes/email/ucemca1.html>.

21. Martin v. Struthers, 319 U.S. 141 (1943).

22. Id.

23. Id.

24. E.g., Schaumburg v. Citizens for Better Environ., 444 U.S. 620 (1980).

25. E.g., Pennsylvania Alliance for Jobs & Energy v. Council of Munhall, 743 F. 2d 182, 185. (3d Cir. 1984).

26. When purchasing products from a door-to-door salesperson, The Federal Trade Commission's "cooling-off" rule allows the purchaser to reverse the transaction within three days of the sale. See, facts for Consumers (Visited Apr. 8, 1998) <http://www.itd.ci.jax.fl.us/pub/consumer/wrong.htm>. See also, Door to door sales (Visited Apr. 8, 1998) <http://147.35.210.53/Aerja/door2.htm>.

27. Rowan v. U.S. Post Office Dept., 397 U.S. 728 (1970).

28. Id.

29. Id.

30. 47 C.F.R. 64.1200 (1994).

31. 47 C.F.R. 64.1200 (e)(1) (1994) (placing time restrictions on telemarketing calls).

32. 47 C.F.R. 64.1200(e)(2)(iv) (1994) (placing identification requirements on telephone solicitors).

33. 47 C.F.R. 64.1200(e)(2)(iii) (1994) (pertaining to 'do not call' requests).

34. 47 U.S.C. 227 (b)(1)(C) (prohibiting unsolicited advertisements sent via fax). (Telephone Consumer Protection Act of 1991) (Visited Apr. 8, 1998) <http://www.law.cornell.edu/uscode/47/227.shtml>.

35. See, e.g., Destination Ventures Ltd. v. F.C.C., 46 F.3d 54 (9th Cir. 1995). (This case challenged the constitutionality of the TCPA's ban on unsolicited advertisements sent by fax. The ban was affirmed based on the 'cost-shifting' rationale.).

36. Martin v. Struthers, 319 U.S. 141 (1943).

37. Martin v. Struthers, 319 U.S. 141 (1943).

38. See, Randy Barrett, Spam And The Quest For Legitimacy, Interactive week (July 7, 1997) (Visited Apr. 8, 1998) <http://www4.zdnet.com/intweek/print/970707/inwk0030.html>.

39. Consumer Research Institute, Annual environmental impact of junk mail, (Visited Apr. 9, 1998) <http://www.stopjunk.com/environment.html>. (explaining the environmental costs of junk mail)

40. Environmental Systems of America, Junk mail factoids and how to be removed from mailing lists (Visited Apr. 9, 1998) <http://envirosystemsinc.com/junkmail.html>.

41. Moore response marketing services, Environmental status report and a ten-step corporate action plan, (Visited Apr. 9, 1998) <http://www.moore.com/mre2A6f.html>.

42. Consumer Research Institute, Junk mail and you, (Visited Apr. 9, 1998) <http://www.stopjunk.com/you.html>. (explaining the personal costs of junk mail)

43. Micahel W. Carroll, Garbage in: Emerging media and regulation of unsolicited
commercial solicitations, Berkeley Technology L.J., paragraph 27 (Visited Apr. 9, 1998) <http://server.berkeley.edu/BTLJ/articles/11-2/carroll.html>. (Citing Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 75 (1983) (quoting Lamont v. Commissioner of Motor Vehicles, 269 F.Supp. 880, 883 (S.D.N.Y.), aff'd, 386 F.2d 449 (2d Cir.1967), cert. denied, 391 U.S. 915 (1968))).

44. See, e.g., Russell Smith, Bulk E-Mail Programs (Visited Apr. 9, 1998) <http://cyberpromo.org/bulkemail.htm>.

45. Randy Barrett, Spam And The Quest For Legitimacy, Interactive week, 37 (July 7, 1997) (Visited Apr. 8, 1998) <http://www4.zdnet.com/intweek/print/970707/inwk0030.html>.

46. Id. at paragraph 42.

47. See, Raymond B. Everett, Comments for Consumer Privacy 1997 - P954807 at 2.18 1. (Visited Apr. 9, 1998) <http://www.ftc.gov/bcp/privacy2/comments2/reverett.htm>.

48. See, e.g., Destination Ventures Ltd. v. F.C.C., 46 F.3d 54 (9th Cir. 1995).

49. Id.

50. See, e.g., Destination Ventures Ltd. v. F.C.C., 46 F.3d 54 (9th Cir. 1995).

51. See, Micahel W. Carroll, Garbage in: Emerging media and regulation of unsolicited
commercial solicitations, Berkeley Technology L.J., paragraph 15 (Visited Apr. 9, 1998) <http://server.berkeley.edu/BTLJ/articles/11-2/carroll.html>. (discussing state interest and 'real' harm or 'conjectural' harm).

52. See, e.g., Parker v. C.N. Enterprises (Tex. Travis County Dist. Ct. Sept. 17, 1997) (temporary injunction).

53. See, CAUCE: Coalition Against Unsolicited Commercial E-mail (Visited Apr. 9, 1998) <http://www.cauce.org/>.

54. See, e.g., The John Marshall Law School, Unsolicited e-mail cases, (Visited Apr. 9, 1998) <http://www.jmls.edu/cyber/cases/spam.html>.

55. Id.

56. Mark Eckenwiler, Just the fax, ma'am, Netguide, paragraph 1 (March 1996)(Visited Apr. 9, 1998) <http://www.panix.com/~eck/junkmail.html>.

57. 47 U.S.C. 227 (1991) (Telephone Consumer Protection Act of 1991) (Visited Apr. 8, 1998) <http://www.law.cornell.edu/uscode/47/227.shtml>.

58. Mark Eckenwiler, Just the fax, ma'am, Netguide, paragraph 12 (March 1996) (Visited Apr. 9, 1998) <http://www.panix.com/~eck/junkmail.html>.

59. 47 U.S.C. 227 (1991) (Telephone Consumer Protection Act of 1991) (Visited Apr. 8, 1998) <http://www.law.cornell.edu/uscode/47/227.shtml>.

60. 47 U.S.C. 227 (b)(1)(C) (prohibiting unsolicited advertisements sent via fax).

61. 47 U.S.C. 227 (a)(2) (defining telephone facsimile machine).

62. Id.

63. See,Alan Cohen, Can the spam: Bills declare war on junk e-mail, New York L.J., (Sept. 15, 1997) (Visited Apr. 9, 1998) <http://www.nylj.com/tech/091597s1.html>.

64. See,Alan Cohen, Can the spam: Bills declare war on junk e-mail, New York L.J., paragraph 20 (Sept. 15, 1997) (Visited Apr. 9, 1998) <http://www.nylj.com/tech/091597s1.html>.

65. The Kode Net System, Important notice about "spam" e-mail, (Visited Apr. 9, 1998) <http://www.kode.net/spam.htm>. (stating that the TCPA renders "spam" illegal).

66. Id.

67. Alan Cohen, Can the spam: Bills declare war on junk e-mail, New York L.J., paragraph 23 (Sept. 15, 1997) (Visited Apr. 9, 1998) <http://www.nylj.com/tech/091597s1.html>.

68. Mark Eckenwiler, Just the fax, ma'am, NetGuide, paragraph 6 (March 1996) (Visited Apr. 9, 1998) <http://www.panix.com/~eck/junkmail.html>.

69. 47 U.S.C. 227 (1991) (Telephone Consumer Protection Act of 1991) (Visited Apr. 8, 1998) <http://www.law.cornell.edu/uscode/47/227.shtml>.

70. H.R. 1748, 105th Congress (1997) (The Netizens Protection Act of 1997) (Visited Apr. 8, 1998) <http://host1.jmls.edu/cyber/statutes/email/npa1.html>. (with introduction).

71. Id.

72. Id. at 2(3) (modifying 47 U.S.C. 227 (b)(1)(D)).

73. When restricting commercial speech a four-part test is derived from Central Hudson Gas & Elec. v. Public Serv. Comm'n, 447 U.S. 557 (1980). It is used to determine the constitutionality of legislation restricting commercial speech.

74. See, e.g., Destination Ventures Ltd. v. F.C.C., 46 F.3d 54 (9th Cir. 1995).

75. Id.

76. When restricting commercial speech a four-part test is derived from Central Hudson Gas & Elec. v. Public Serv. Comm'n, 447 U.S. 557 (1980). It is used to determine the constitutionality of legislation restricting commercial speech.

77. When restricting commercial speech a four-part test is derived from Central Hudson Gas & Elec. v. Public Serv. Comm'n, 447 U.S. 557 (1980). It is used to determine the constitutionality of legislation restricting commercial speech.

(The test is stated as: "(a) Although the Constitution accords a lesser protection to commercial speech than to other constitutionally guaranteed expression, nevertheless the First Amendment protects commercial speech from unwarranted governmental regulation. For commercial speech to come within the First Amendment, it at least must concern lawful activity and not be misleading. Next, it must be determined whether the asserted governmental interest to be served by the restriction on commercial speech is substantial. If both inquires yield positive answers, it must then be decided whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest." Pp. 561-566.)

78. See, Raymond B. Everett, Comments for Consumer Privacy 1997 - P954807 at 2.17. (Visited Apr. 9, 1998) <http://www.ftc.gov/bcp/privacy2/comments2/reverett.htm>.

79. See, e.g., The John Marshall Law School, Unsolicited e-mail cases, (Visited Apr. 9, 1998) <http://www.jmls.edu/cyber/cases/spam.html>. (fraud cases, see People of New York v. Lipsitz; trademark violations, see Bigfoot Partners, L.P. v. Cyber Promotions, Inc.).

80. Edenfield v. Fane, 507 U.S. 761 (1993).

81. See, Martin v. Struthers, 319 U.S. 141 (1943). See also, Schaumburg v. Citizens for Better Environ., 444 U.S. 620 (1980). and Rowan v. U.S. Post Office Dept., 397 U.S. 728 (1970).

82. Projects 80's, Inc. v. City of Pocatello, 942 F.2d 635 (9^th Cir. 1991).

83. Projects 80's, Inc. v. City of Pocatello, 942 F.2d 635 (9^th Cir. 1991)

84. H.R. 2368, 105^th Congress (1997) (Data Privacy Act of 1997) (Visited Apr. 9, 1998) <http://host1.jmls.edu/cyber/statutes/email/dpa.html>.

85. S. 875, 105th Congress (1997) (Electronic Mailbox Protection Act of 1997) (Visited Apr. 8, 1998) <http://host1.jmls.edu/cyber/statutes/email/empa1.html>.

86. S. 771, 105th Congress (1997) (Unsolicited Commercial Electronic Mail Choice Act of 1997) (Visited Apr. 8, 1998) <http://host1.jmls.edu/cyber/statutes/email/ucemca1.html>.

87. S. 875, 105th Congress (1997) (Electronic Mailbox Protection Act of 1997) (Visited Apr. 8, 1998) <http://host1.jmls.edu/cyber/statutes/email/empa1.html>.

88. Id.

89. Rowan v. U.S. Post Office Dept., 397 U.S. 728 (1970).

90. When restricting commercial speech a four-part test is derived from Central Hudson Gas & Elec. v. Public Serv. Comm'n, 447 U.S. 557 (1980). It is used to determine the constitutionality of legislation restricting commercial speech.

91. S. 771, 105th Congress (1997) (Unsolicited Commercial Electronic Mail Choice Act of 1997) (Visited Apr. 8, 1998) <http://host1.jmls.edu/cyber/statutes/email/ucemca1.html>.

92. Id.

93. Id.

94. 47 C.F.R. 64.1200(e)(2)(iv) (1994) (placing identification requirements on telephone solicitors).

95. Micahel W. Carroll, Garbage in: Emerging media and regulation of unsolicited
commercial solicitations, Berkeley Technology L.J., paragraph 27 (Visited Apr. 9, 1998) <http://server.berkeley.edu/BTLJ/articles/11-2/carroll.html>. (Citing Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 75 (1983) (quoting Lamont v. Commissioner of Motor Vehicles, 269 F.Supp. 880, 883 (S.D.N.Y.), aff'd, 386 F.2d 449 (2d Cir.1967), cert. denied, 391 U.S. 915 (1968))).

96. See, Justice Black delivering the Opinion of the Court in Martin v. Struthers, 319 U.S. 141 (1943).

97. "Snail-mail" is a term used by netizens when referring to regular postal delivered mail.