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Abstract

Before 1994, the average Internet user received little unsolicited commercial email, or "spam." But that all changed in April 1994, when enterprising Arizona lawyers Laurence Canter and Martha Siegel sent spam advertising their immigration law "services" to approximately 8,000 Usenet newsgroups reaching approximately 20 million people. It inspired irate Usenet users to flame Canter and Siegel in such great volume that the attorneys' ISP's computer crashed. The computer overloads Canter and Siegel's stunt caused also completely knocked out New Zealand's Internet access. But the ads must have worked because despite the fallout, Cander and Siegel persisted in their spam ad campaigns. Following in Canter and Siegel's footsteps, countless direct marketers have taken the lawyers' technique to a new level and sent their ads to thousands of individual email accounts at a time. Because this marketing technique is easier and far less costly than sending an equivalent number of direct mail solicitations, email accounts worldwide have been deluged with "make money fast" scams, pyramid schemes, and dubious chain letters. The burden on the worldwide computer network has the potential to bring down the Internet one node at a time. This article analyzes the spam problem under First Amendment "commercial speech" jurisprudence, including lawsuits that senders of junk faxes filed challenging (unsuccessfully) the legal restrictions that form the most sensible template for an effective anti-spam law. Part II explores the social and technological context in which the spam problem developed, and discusses the true financial costs of the practice. Part III describes ISPs' and state governments' unsuccessful attempts to restrict the most destructive aspects of spamming. Part IV analyzes the First Amendment protections of spam as "commercial speech" and examines five federal proposals to curtail spam, concentrating on their legality and likely effectiveness. The article concludes that two solutions--amending the junk fax law to cover Internet solicitations, or a bill currently in Congress that provides civil and criminal penalties for engaging in some of the most egregious spamming practices--will be the most effective and the least vulnerable to First Amendment challenges. It also suggests an alternative, model bill that would bring together the best of the current proposals before Congress and would close the loopholes in those proposals.

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