Like it or not, spam has become a regular menu item on the Internet information diet. Each day, millions of people open their e-mail in-boxes to find unsolicited commercial e-mail (UCE)--the polite name for the Net artery-clogging messages better known as spam. Sometimes these missives advertise products or services from what most people would agree are legitimate businesses. But often they are invitations to visit adult Web sites, enticements for miracle cures and wonder diets, or pitches for the latest get-rich-quick schemes.

The use of spam by unsavory characters to cajole people into shaky deals has even prompted the Federal Trade Commission to issue an advisory alert called Trouble @ the In-Box. The FTC has, according to a press release headlined "No Scamming While You're Spamming," put more than 1,000 junk e-mailers "on notice that [federal] agencies are monitoring unsolicited e-mail for fraudulent schemes and are keeping track of the schemers."

Some people react to spam by pressing the delete key and moving on. Others write angry letters to their Internet service providers or to their state and federal legislators. Some take the spam war to extremes--hurling threats and insults at spammers.

Granted, spam can be irritating, but the Internet community's reaction to it strikes me as over the top. Don't spammers have rights, too? Some lawmakers are even proposing overbroad legislation to ban all unsolicited commercial e-mail--a move reminiscent of the Communications Decency Act (CDA), a disastrous piece of legislation that, thankfully, the courts struck down. More moderate lawmakers are pushing legislation aimed at curbing spam and some spam practices, without banning e-mail advertising outright. It all amounts to yet another topic for Netizen discussion groups and articles by Net-savvy pundits.

But isn't it ironic that many of the people who defend pornographers' free-speech rights want to deny those same rights to senders of commercial e-mail? I understand that commercial speech doesn't have the same level of First Amendment protection as other forms of speech. And I also realize it can be annoying--and in some cases, expensive--to handle vast quantities of unwanted e-mail. But before we deny people the right to send such mail, we had better consider the long-term implications.

Who's spamming, and does it work?

Bulk e-mail can be effective, but it's not always worth the trouble it can cause the sender. Bob Massa, owner of Magic-City.Net, an Oklahoma City, Okla., company that helps other organizations increase Web traffic by submitting their URLs to search engines, used to send out bulk e-mail to advertise his service. "It was more effective than anything else I've known," he says. "When I started, I was sending 30,000 messages a night and getting about a 1 percent response rate. There were times when I got as many as 200 orders in one day."

So why did Massa quit? Because "it's no longer worth it," he says. "Anti-spammers were sending me mail bombs, hacking my site and harassing me. One irate person sent me snail mail saying that he had mailed me a pregnant venomous spider and hoped it would bite someone and cause serious injury or death."

Calvin Fuller, a Burlingame, Calif.-based entrepreneur, has had similar experiences. Fuller has been involved with several Internet businesses and is developing an online and print magazine called Bikini Models, which he describes as a "PG-rated publication that includes pictures of bikini-clad models."

During the past couple of years, Fuller has used spam extensively but has backed off lately for a number of reasons, including the reactions he got from some recipients. "For every person who is excited about what I'm promoting, I'll hear from a lot more people who take the same amount of time to say how they are annoyed."

Fuller is also having trouble finding ISPs that will let him send bulk e-mail. "Most of the major providers of bulk e-mail-friendly accounts have shut down because other ISPs will block their incoming traffic."

Massa's and Fuller's tales of the treatment they received from anti-spammers were echoed by almost everyone I interviewed who had used spam to market products and services. Onsale Inc., a Menlo Park, Calif.-based public company that holds Web auctions, experimented with bulk e-mail but soon dropped it, according to Michelle Pettigrew, vice president of business development. Onsale used software to crawl the EBay Inc. auction site to pick up about 20,000 names and e-mail addresses.

Although Onsale received a significant number of positive inquiries as a result of its mailings, the company also got a lot of negative comment from EBay, Pettigrew says. In general, the potential for backlash is too great. "There are," Pettigrew adds, "ways to reach those customers through other means--such as banner ads--that are nontoxic."

The reaction against spam has been so strong that even people who use subscription-based lists sometimes get angry letters. I know because I'm one of them. I operate a free mailing list for people interested in following the articles I post to my Web site, www. larrysworld.com. The only way to get on the mailing list is to subscribe, but I've still received a number of angry letters from people who apparently forgot they had subscribed. For a while, a temporary glitch in my software failed to remove people who had asked to be deleted, resulting in several letters threatening legal action or requesting that ISPs block all mail from my account. Most people graciously accepted my apology, but a few remained angry.

And what about the complaints from ISPs and online service providers (OSPs)? They say spam clogs their networks and that they have a right to prohibit it. However, Joe Melle of the National Organization of Internet Commerce says that bulk e-mailers are no different from other advertisers: "America Online Inc. says we use their resources ... [but] if you have a mailbox at Mail Boxes Etc., you pay for your mailbox and still get junk mail."

Melle, who is also the president of Ontario, Calif.-based TSF Industries Inc., which sells bulk e-mail products and services, says he's fighting the big guys on behalf of small businesses that can't afford to pay the high advertising and banner rates that AOL and large commercial Web sites charge. "The only reason AOL doesn't want us to send e-mail is because we are competition," he says. And Melle calls AOL's pop-up ads a form of spam. (These pop-up ads can be disabled, however, by using the keyword "marketingpress.")

Melle achieved a degree of infamy in December when he threatened to post 5 million AOL member addresses on NOIC's Web site (which at press time was defunct) in protest of AOL's anti-spam policies. Melle later rescinded the threat.

George Vradenburg, AOL's senior vice president and general counsel, rejects the accusation that his company is blocking spam for competitive reasons. "We are responding to our customers' complaints about the quantity of the material and the particularly [irritating] pornographic material," he says. "The problem with junk e-mail is that there is no cost to the sender," he adds. "The sender can [transmit] millions of pieces of e-mail and cover his investment by getting only a minuscule return. All the costs are on the user."

Vradenburg also denies that AOL's pop-up advertising is spam. "With respect to pop-ups, we give people the right to opt out and, eventually, we plan to tailor those pop-ups to consumers' interests."

AOL, Vradenburg says, doesn't have any quarrels with legitimate marketers who are honest about who they are and respect members' requests to remove them from their mailing lists.

In mid-April, AOL sued TSF and two other spammers. Other OSPs and ISPs are also fighting spam. In March, EarthLink Network Inc. of Pasadena, Calif., reached an agreement with well-known spammer Cyber Promotions Inc. of Philadelphia that bars the marketer from sending unsolicited e-mail to EarthLink members. EarthLink had sued the company in Los Angeles Superior Court. Cyber Promotions, which paid $2 million to settle the case , has stopped distributing bulk e-mail because of various disputes with ISPs and OSPs, including AOL and CompuServe Corp., now part of AOL.

Porno spam

For many people, the most annoying form of spam comes from adult-Web-site operators who use it to attract visitors. In one week, my AOL account received more than 20 solicitations to visit X-rated adult sites. Worse, my 11-year-old son also regularly receives such invitations. Although a large number of these sites require a credit card to enter, many also have teaser pages with sexually explicit images, and some even provide free samples to anyone who simply says he or she is over 18.

As obnoxious as these porno spammers are, they do not represent the adult Web site industry as a whole. Many adult-site operators don't use unsolicited e-mail. In fact, one major adult-site operator, who agreed to an interview on the condition that we use his nickname--Fantasyman--says he never uses UCE to attract visitors. "It's both a business decision and a moral decision," he explains.

Fantasyman, who has three children himself, worries that "spam can easily find its way to a child's mailbox." He has no interest in enticing kids to his site, he says, noting that "all a kid can do there is waste my bandwidth."

What about free speech?

Spammers, like the rest of us, have rights. And while I have some concerns about the proliferation of pornography on the Internet, like millions of other Netizens, I fought against the CDA because I consider such censorship an undue infringement of our First Amendment rights. If Congress can pass a law that prevents smut peddlers from expressing themselves, what's to stop future Congresses from preventing other forms of speech, including those that espouse unpopular political or religious ideas?

Like many people on the Net, I've even defended the rights of Nazis, skinheads, homophobes, sexists and others extremists whose views I detest. It's not up to our government, or even ISPs, to sanitize thought. That's what living in a free society is all about.

Yet while Netizens rallied against the CDA, I rarely hear them voice the same concerns about pending federal and state legislation that would deny people the right to send spam.

In fact, there seems to be a lot of support for the Netizens Protection Act of 1997, which would ban UCE entirely. Introduced last year by Rep. Chris Smith, R-N.J., the bill would amend the Communications Act of 1934 by making it a crime "to use any computer or other electronic device to send an unsolicited advertisement to an electronic mail address of an individual with whom such person lacks a pre-existing and ongoing business or personal relationship, unless such individual provides express invitation or permission." In other words, all commercial solicitations would be illegal unless the sender had--presumably by means other than unsolicited e-mail--received prior permission to send the mail.

Several states are considering similar legislation. California Assemblyman Gary G. Miller, R-Diamond Bar, has introduced the Internet Consumer Protection Act in the California legislature, which would prohibit sending unsolicited e-mail to anyone in California, regardless of the e-mail's place of origin. A company planning a national or global marketing campaign would have to find a way to avoid sending messages to residents of California even though e-mail addresses, unlike zip codes, provide no clue as to where a person lives.

Bills being considered at the state level could be even more problematic because there wouldn't be a single national standard for determining what is or isn't a legal form of e-mail.

These bills represent a form of prior constraint on commercial speech that could also affect other forms of speech and, like the CDA, could end up being overturned by the courts. Ann Beeson, national staff attorney at the American Civil Liberties Union headquarters in New York, argues that banning UCE entirely would violate the First Amendment rights of commercial speakers. Proposals such as the Netizens Protection Act, she says, "are so overbroad that they practically outlaw commercial advertising on the Web." Adds Beeson, "We think the complete ban of unsolicited commercial e-mail would be unconstitutional for the same reason it was unconstitutional with printed unsolicited mail."

Like other bills that restrict speech, a bill outlawing all unsolicited commercial e-mail could have far-reaching implications. Might it be against the law, for example, for an individual to send résumés to prospective employers if those employers hadn't actively solicited them? And what about political candidates and religious organizations that include fund-raising appeals in messages that might otherwise be considered political or religious speech?

At a mock trial held in February during the Computers, Freedom and Privacy conference in Austin, Texas, participants argued a case based on a fictitious state bill similar to California's proposed Internet Consumer Protection Act.

Jonathan Zittrain, executive director of the Berkman Center for Internet and Society at Harvard Law School, was one of the lawyers chosen to represent the hypothetical spamming company at the trial. He argued persuasively that a law prohibiting spam in any state could effectively ban unsolicited e-mail throughout the United States because unlike telephone numbers, e-mail addresses cannot be tied to specific locations. Thus, it would be a burden for the sender of UCE to determine the destination state.

Zittrain, in an interview, pointed out that the First Amendment issues raised in this fictitious trial were based on what he considered a poorly drafted and overly broad hypothetical state statute. He says, however, that it may be possible for Congress to enact anti-spam legislation that could pass constitutional muster. "Instead of banning spam," he suggests, "consider a labeling requirement and try to adhere as much as possible to whatever we understand to be the definition and Supreme Court doctrine of what is considered commercial speech." If spam is to be regulated, Zittrain urges that it be done at the federal rather than at the state level.

"If you're a legislator thinking of banning spam," Zittrain advises, "you have to be really careful what you define as spam. Is one message enough, or do you want to go after people who are sending multiple messages?" It is tempting, he notes, to say that "everyone knows a single message isn't spam, but in the area of the First Amendment, you can't assume that we all know what it is." (See "Assorted Spam")

Zittrain also urges legislators to take a longer and perhaps more patient look at the issue. "Realize that the Internet is still young and that this may be a transitory phenomenon," he says. "Maybe we should wait until most of these spammers go out of business."

Less draconian measures

There are alternatives to banning all unsolicited commercial e-mail. In addition to the Smith bill, Congress is also considering the Unsolicited Commercial Electronic Mail Choice Act of 1997. Introduced by Sen. Frank Murkowski, R-Alaska, this bill would require that anyone sending unsolicited e-mail "include the word advertisement at the beginning of such a message." The bill would also require that "the name, physical address, electronic mail address and telephone number of the sender be prominently displayed within such a message." ISPs would be required to honor any subscriber request to block such messages. The bill also allows an ISP, "upon its own initiative, to block the receipt through its service of any electronic mail that contains the term advertisement in its subject line."

Another bill that restricts but doesn't outlaw UCE is the Electronic Mailbox Protection Act of 1997, introduced by Sen. Robert Torricelli, D-N.J. This bill begins by asserting that "unsolicited electronic mail can be an important mechanism through which commercial vendors, nonprofit organizations and other providers of services recruit members, advertise and attract customers in the online environment." The bill would ban sending UCE from "an unregistered or fictitious Internet domain, or an unregistered or fictitious electronic mail address" for the purpose of preventing users from replying or ISPs from blocking such mail.

According to Sen. Torricelli, the bill would empower an Internet standard-setting body to create an "'opt-out' system, an 'opt-in' system or even some sort of address-labeling standard--whatever the Internet community chooses to adopt." It would also make it illegal to use a computer program to "harvest, or gather, a large number of e-mail addresses" if such activity were "against the policy of the computer service from which the addresses are collected."

The Coalition Against Unsolicited Commercial Email (CAUCE) supports the Netizens Protection Act and opposes the other two bills. On its Web site, the group argues that the Murkowski bill "legitimizes spam as long as it is 'tagged' with the word advertisement." The Torricelli bill, while helping to eliminate "shady, fraudulent and prurient spam," would nonetheless legitimize the use of unsolicited e-mail and "leave the door open for well-funded marketers to spam in the future," according to the coalition.

Will the real bad guys please shut up?

Whenever you pass a law to protect people against bad guys, it's important to know who the bad guys are. Even when trying to suppress their activity, it's essential that we protect their constitutional rights. It's also essential not to punish innocent or relatively innocent people for the sins of a few.

Both the Murkowski and Torricelli bills attempt to strike a balance by going after abusers while not necessarily punishing those who would use unsolicited e-mail, in moderation, as a means to conduct business. The Smith bill, on the other hand, would stifle the use of bulk e-mail entirely before it has been given a fair test. My sense is that people wouldn't react all that negatively to an occasional message from a legitimate merchant, provided that filtering really worked, that it would be easy to get off the list and that the message isn't mixed in with e-mails from scam artists and adult-site operators.

John Weston, a West Los Angeles-based First Amendment attorney who represents several adult sites, looks to snail mail for precedent. He cites postal regulations by which people have the right to trigger a mechanism that effectively blocks companies from sending sexually explicit material to their mailboxes. The same approach could be tried on the Net.

"There should be a mechanism by which consumers can require people not to communicate with them," Weston says. "As one who doesn't like to receive unsolicited mail, I don't like being contacted without my request, but I recognize that our economy doesn't function that way."