"Excuse me. Not true," you say.

Before people start to howl in protest, you and I need to gain a clear understanding of a few points.

You may have heard the US Federal Court of Appeals recently upheld the constitutional validity of the Do-Not-Call-Registry.

(The link is to a PDF copy of the decision, which is referenced throughout this article.)

The Court Ruling

The Court ruled:

"The primary issue in this case is whether the First Amendment prevents the government from establishing an opt-in telemarketing regulation that provides a mechanism for consumers to restrict commercial sales calls but does not provide a similar mechanism to limit charitable or political calls.1 We hold that the do-not-call registry is a valid commercial speech regulation because it directly advances the government’s important interests in safeguarding personal privacy and reducing the danger of telemarketing abuse without burdening an excessive amount of speech. In other words, there is a reasonable fit between the do-not-call regulations and the government’s reasons for enacting them."

The Court went on to state:

"As we discuss below in greater detail, four key aspects of the do-not-call registry convince us that it is consistent with First Amendment requirements. First, the list restricts only core commercial speech - i.e., commercial sales calls. Second, the do-not-call registry targets speech that invades the privacy of the home, a personal sanctuary that enjoys a unique status in our constitutional jurisprudence. See Frisby v. Schultz, 487 U.S. 474, 484 (1988). Third, the do not-call registry is an opt-in program that puts the choice of whether or not to restrict commercial calls entirely in the hands of consumers. Fourth, the do-not call registry materially furthers the government’s interests in combating the danger of abusive telemarketing and preventing the invasion of consumer privacy, blocking a significant number of the calls that cause these problems. Under these circumstances, we conclude that the requirements of the First Amendment are satisfied."

How is this germane to the question?

The commercial free speech issues involved in making unsolicited telephone sales calls are similar to those in sending unsolicited commercial email.

I can hear you saying "But TEOS sets up a regime which includes the law and CAUCE is opposed to the stuff."

Quite true.

Some will say this decision strikes at the very heart of the opposition against a Federal law prohibiting the sending of unsolicited commercial email.

Perhaps. However, remember the Do-Not-Call Registry only came into being after many years of attempted self-regulation.

But to those who have been critical of the approach taken under the Can Spam Act of 2003 (Act) to regulating commercial email; a close read of the decision explains why Congress had to proceed as it did in the first Federal attempt in the United States to regulate email.

Just before we go forward, there are two other matters you and I need to discuss.

Two Asides

Some commentators in dealing with the application of the Act have been suggesting even though an e-zine contains ads, these ads must be looked at in context in determining whether a particular issue of an e-zine is a commercial electronic mail message as defined.

The argument goes "opt-in content based e-zines" supposedly fall outside of the Act's purpose and therefore should be exempt.

At page 17 of the Do-Not-Call Registry decision, the Court states:

"The national do-not-call registry’s telemarketing restrictions apply only to commercial speech. Like most commercial speech regulations, the do-not-call rules draw a line between commercial and non-commercial speech on the basis of content. See Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 504 n.11 (1981) ("If commercial speech is to be distinguished, it must be distinguished by its content."); Bates v. State Bar of Ariz., 433 U.S. 350, 363 (1977) (same)."

This helps to explain why the definition of commercial electronic mail message in the Act is focused on the content of the message.

(Read subsection 3 (2) of the Act for the definition of commercial email.)

It also means "Want to suggest 'opt-in content based e-zines' are not commercial electronic mail messages;" the onus is on publishers to establish a sound basis as to why this type of e-zine should not be subject to the Act.

As an aside, do publishers want this exemption? Here is a tip. Use freedom of the press and not freedom of speech to underpin your position.

Also, are you concerned about the suppression requirements under the Act?

Two thoughts. Do you run solo ads? To avoid any privacy issues, some suggest allowing a subscriber to opt-out from receiving ads for a particular product or service, why not set up a separate email address to receive these types of remove requests? The advertiser can receive the requests and also pass the requests along to the publisher.

In this way the publisher is not violating the privacy pledge. For ideas on how the suppression rules may look, a gander at the telemarketing rules may be a useful exercise.

Okay, I digress.

Back to the Saga

At pages 18 of the Do-Not-Call Registry decision, the Court wrote:

"In reviewing commercial speech regulations, we apply the Central Hudson test. Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 566 (1980); see also City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 416, 429-30 (1993) (noting that the challenged law drew content-based distinctions between commercial and non-commercial speech and applying more lenient scrutiny under Central Hudson); Florida Bar v. Went For It, Inc., 515 U.S. 618, 634-35 (1995) ("This case ... concerns pure commercial advertising, for which we have always reserved a lesser degree of protection under the First Amendment."); Lanphere & Urbaniak v. Colorado, 21 F.3d 1508, 1513 (10th Cir. 1994) (content-based regulations disadvantaging commercial speech are reviewed pursuant to the lesser degree of First Amendment protection provided in Central Hudson).

Central Hudson established a three-part test governing First Amendment challenges to regulations restricting non-misleading commercial speech that relates to lawful activity. First, the government must assert a substantial interest to be achieved by the regulation. Central Hudson, 447 U.S. at 564. Second, the regulation must directly advance that governmental interest, meaning that it must do more than provide "only ineffective or remote support for the government’s purpose." Id. Third, although the regulation need not be the least restrictive measure available, it must be narrowly tailored not to restrict more speech than necessary. See id.; Board of Trs. of the State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989). Together, these final two factors require that there be a reasonable fit between the government’s objectives and the means it chooses to accomplish those ends. United States v. Edge Broad. Co., 509 U.S. 418, 427-28 (1993).

The government bears the burden of asserting one or more substantial governmental interests and demonstrating a reasonable fit between those interests and the challenged regulation. Utah Licensed Beverage Ass’n v. Leavitt, 256 F.3d 1061, 1069 (10th Cir. 2001). The government is not limited in the evidence it may use to meet its burden. For example, a commercial speech regulation may be justified by anecdotes, history, consensus, or simple common sense. Went For It, 515 U.S. at 628. Yet we may not take it upon ourselves to supplant the interests put forward by the state with our own ideas of what goals the challenged laws might serve. Edenfield v. Fane, 507 U.S. 761, 768 (1993)."

Let's break this down

Some may argue, how is the action of sending commercial email a potentially protected right under the First Amendment of the US Constitution.

True, the First Amendment in the United States Constitution says "Congress shall make no law ... abridging the freedom of speech, or of the press."

Two comments. You can suggest an e-zine, focused on delivering news in a particular market segment is part of the press, however the news is delivered.

More importantly, we must remember a Constitution is a living document. It should and must not be given a restrictive meaning. Any court worth its constitutional salt would give short shrift to an argument suggesting the First Amendment has no application due to the method of delivery of the speech.

Fine. This still does not tell us why Congress acted the way it did.

The Three Prong Test

In determining whether any government regulation of commercial electronic messages (speech) is valid, the Court tells us we must apply a three prong test:

* The government must "assert a substantial interest to be achieved by the regulation."

* "The regulation must directly advance that governmental interest," meaning that it must do more than provide "only ineffective or remote support for the government’s purpose."

* "Although the regulation need not be the least restrictive measure available, it must be narrowly tailored not to restrict more speech than necessary."

The two final factors require that "there be a reasonable fit between the government’s objectives and the means it chooses to accomplish those ends."

"Okay," you are saying. "How does this not support a basis for a Federal law banning unsolicited commercial email?"

Well, let me explain.

The Application

Talk with any "expert" on the topic and all will agree the solution to the "spam problem" involves a number of elements and simply passing a law "banning unsolicited commercial email" will not solve the problem.

What does this mean? An "opt-in law" to use the vernacular was potentially open to challenge on the basis it did not directly advance the government interest.

However, the strongest argument against a Federal "opt-in law" regulating commercial email is the law would be too sweeping in nature, given methods of self regulation proposed by the private sector.

"What methods of self-regulation?" you ask, especially with the Direct Marketing Association and others in favor of "legitimate commercial email," which is their code for "good spam."

(For more on this point, you will want to read the article Is The Writing On The Wall For Spam?)

Self-Regulation

Do you remember the "Spam Forum" which the Federal Trade Commission hosted in the spring of 2003?

One of the things to come out of this Forum was the support given by CAUCE for the Trusted Email Open Standard or TEOS for short. To read the press release issued by CAUCE on May 2, 2003 use this.

Well guess what folks? By supporting TEOS as a reasonable way to self regulate, CAUCE arguably helped to make it impossible for Congress to pass a law regulating commercial email by banning UCE.

Yep, CAUCE, by agreeing to champion the Trusted Email Open Standards approach and so allow the market to self-regulate, helped to throw kindling on the fire, resulting in the possibility of a Federal "opt-in anti-spam law," which many commentators are now hailing as the only solution, to go up in smoke.

Mind you, in fairness to all and sundry, this was obviously not the only factor involved in the decisions made by Congress.

We all are familiar with the huge efforts by Microsoft, America Online and the Direct Marketing Association to lobby Congress to pass an opt-out law before California's anti-spam law went into force. And the joinder of certain movements to support a Do-Not-E-mail Registry is well known.

The Trusted Email Open Standard

What is the Trusted Email Open Standard and how did CAUCE's support of this form of market self-regulation, possibly achieve this unholy goal?

TEOS is a private initiative. The concept is straight forward.

With the use of filters, most mail servers sort messages based on content.

There are a number of problems with this approach:

* Filtering messages and sending those not accepted to a junk mail box eats up a lot of storage space.

* As spam volumes increase with the use of spam robots, it can create choke points in the system.

* It tends to result in "collateral damage" with significant numbers of messages not being properly categorized (the estimated percentage being around fifteen percent.)

The suggested solution? Set up a gate to screen messages. To get through the gate, the message has to come from a registered sender.

How do you determine who is an approved sender? You establish an agreed set of criteria for sending commercial messages. (Essentially, the agreed criteria are either the recipient having opted-in or proof of a pre-existing business relationship.)

Senders who agree to meet these criteria can register their transmission information including their Internet Protocol address with a private registry. To ensure compliance with the agreed criteria, registrants have to post a bond and the sending behavior of those who register is monitored by an independent third party.

Approved senders are able to utilize an electronic seal. As a message arrives at the gateway, in essence the question is asked "Do you come from a registered sender? Yes, well you can pass." No? The mail server’s filters can either be set to simply reject messages coming from unregistered senders, or to put these messages through analysis to see whether the message should pass.

When this concept was initially proposed, as the approved sending criterion was based on an opt-in approach, CAUCE came out in support.

(For the full show, you will want to read Trusted Email Open Standard.)

Great, now you have a private method of self-regulation.

Of course, for this system to work, the senders have to pay a fee to register and post a bond to secure performance, with a sliding scale depending on volume. The higher the volume, the higher the fee and the bond.

Naturally, there must be sufficient profit to cover the cost of running the program and to cover the fees and expenses of the trusted third party.

Further, all the Internet access providers have to sign on. At the same time, you have to set the fee scales at a level which does not act as a market bar, otherwise you run into competition issues.

The Application Of TEOS

When this standard was put forward in the spring of 2003 a number of elements were required:

* Firms had to come forward to run the private registry systems.

* The software was required.

* Trusted independent third parties were required; and,

* Internet access providers had to sign on.

However, by mid-November things were starting to come together.

We knew the name of at least one "trusted" third party. A firm called TRUSTe.

But wait, it gets better.

One of the firms proposing to run a private registry system is known as Bonded Sender.

Internet access providers who join the Bonded Sender program receive the gateway software to install on their mail servers free of charge.

Now this is where life gets very fascinating.

Bonded Sender is owned by Iron Port. Iron Port had purchased SpamCop which markets filters and operates a "black list system." Of course everyone knows the principal behind SpamCop has long been an opponent of unsolicited commercial email.

Key people within Iron Port have close ties to Microsoft.

(For the details read the information sheet put together by Ken Evoy of Site Sell found here.)

MSN is one of the internet access providers strongly supportive of the Trusted Email Open Standards project.

(You can read the text of an open letter issued by Bill Gates, Chairman & Chief Software Architect, Microsoft Corporation to Senator John McCain, Chairman and Senator Ernest F. Hollings, Ranking Member U.S. Senate Committee on Commerce, Science, and Transportation prior to the passage of the Act on the TEOS web site.)

The list of trusted sender programs not only includes Ironport's Bonded Sender, but also Habeas Sender Warranted Email; the Email Deliverability Database (EDDB); ePrivacy Group's Trusted Sender and Email Service Provider Coalition's Project Lumos.

Other Parts Of The Puzzle

At the same time as the implementation of TEOS was moving forward, Microsoft, Earthlink, America Online and Yahoo! had come together to work on a project to change the delivery of email.

This project was more ambitious. It involved a redesign of the protocol for sending and receiving email.

One of the strengths and weaknesses of the Internet is decentralization and anonymity.

The technical proposal under discussion involved a significant change in approach.

Of course, as we now know, the parties ultimately went there separate ways. America Online is championing the Sender Policy Framework (SPF), Microsoft is advocating Caller-ID for E-mail and Yahoo! is proposing Domain Keys.

(For more information on these projects, you will want to read the article Is The Writing On The Wall For Spam?)

"This is all fine and good," you say, "but how does all this mean an "opt-in anti-spam law" is unconstitutional? And why does CAUCE championing the Trusted Email Open Standard mean this group aided a US "opt-in anti-spam law" going up in smoke?"

The Problem And The Answer

With various firms up and ready to operate, could Congress pass a law which simply prohibited the sending of unsolicited commercial email without giving private regulation a chance?

Any law simply prohibiting the stuff was open to challenge. Why?

What does the evidence show are the big problems?

* Abuse of the Internet through the sending of bulk unsolicited commercial messages using false headers, along with hacking, cracking, phishing, spam robots and false from information.

* Messages having deceptive subject lines.

* Sending messages with false headers and so forth to email addresses gathered through harvesting or dictionary attacks.

* Either not giving people the option of opting out, or giving people the option of opting out but not respecting the recipient's request and misusing the information people give on opting out.

Applying the three prong test the Court applied in the Do Not Call case, the key question becomes:

* How does prohibiting the sending of unsolicited commercial email without prior consent advance the prevention of these problems and is it a reasonable fit to resolve the problems with minimal interference in regulating commercial speech?

Arguably it does not. With Microsoft and anti-spam groups like CAUCE championing the Trusted Email Open Standard, this helped to ultimately pave the way for the Can Spam Act of 2003.

Besides, the concept of prohibiting the sending of unsolicited commercial email without prior consent smacks me as being an oxymoron. Either you are going to prohibit the sending of UCE or not.

Civil Liberties And Government Regulation

What does all this say about the mix between government regulation and civil liberties?

CAUCE’s goal to stop unsolicited commercial email is admirable. With the rapid growth of the consumer web, Internet abuse is now a significant problem. I need not repeat the litany of complaints.

At the same time, when Americans call upon their government to regulate private behavior, the system of checks and balances set up in the American constitution steps in.

In the spring of 2003, when CAUCE signed on to the Trusted Email Open Standard, I doubt very much anyone thought this would be part of the mix in restraining Congress from passing a Federal law prohibiting unsolicited commercial email.

Yet, at the end of the day, this may turn out to be for the greater good. Why? It gives the market an opportunity to regulate itself, while allowing the authorities in the United State to go after those committing the most abusive behavior.

(One of the biggest question marks remains the ability of the authorities to prosecute spammers, even with the beefed up provisions under the Act. For an understanding of the problems confronted by the Commission in carrying out international prosecutions and some of the proposed solutions, review the reference in the article Is The Writing On The Wall For Spam?)

With the US Federal Court of Appeals having ruled against telemarketers in the Do Not Call case, it is time for the Direct Marketers Association and others who opposed a law prohibiting the sending of unsolicited commercial email to change their stance and come out in favor of permission based email marketing.