45 Buffalo L. Rev. 1001 (1997)
Unsolicited Commercial E-Mail and the
Telephone Consumer Protection Act of 1991David E. Sorkin*
Notes* Assistant Professor of Law and Associate Director of the Center for Information Technology and Privacy Law, The John Marshall Law School, e-mail 7sorkin@jmls.edu. The author wishes to express his thanks to Steven McAuley (John Marshall Class of 1998), who provided valuable research assistance, and to Mark Eckenwiler, Esq., whose March 1996 NetGuide column suggested the topic for this article. This Article was submitted to the Buffalo Law Review on January 22, 1997, and was accepted for publication in the Spring 1997 issue on February 9, 1997. The Article does not reflect developments that occurred after this date, including the introduction of several relevant bills in Congress and various state legislatures and decisions rendered by several state and federal courts, although some of the citations have been updated by the staff of the Buffalo Law Review. For information on recent legal developments related to unsolicited e-mail, see <http://www.jmls.edu/cyber/index/spam.html>.
1. Pub. L. No. 102-243, 105 Stat. 2394 (codified as amended at 47 U.S.C. § 227 (1994)).
2. See S. Rep. No. 102-178, at 3 (1991), reprinted in 1991 U.S.C.C.A.N. 1968, 1970; see also 137 Cong. Rec. H11,314 (daily ed. Nov. 26, 1991) (statement of Rep. Markey) ("We are sending instructions over to the FCC that we want them to begin the process here of shutting down the abuse of the telephones and fax machines that have grown over the last half a decade.").
3. See 47 U.S.C. § 227(b)(1)(A), (D).
4. See 47 U.S.C. § 227(b)(1)(B).
5. See 47 U.S.C. § 227(c); 47 C.F.R. § 64.1200 (1996).
6. See 47 U.S.C. § 227(b)(1)(C).
7. See 136 Cong. Rec. H5820 (daily ed. July 30, 1990) (statement of Rep. Markey) ("[W]ith the growth in use of the fax machines has come 'junk fax,' the electronic equivalent of junk mail.").
8. See infra note 20 and accompanying text.
9. 47 U.S.C. § 227(a)(2).
10. See infra text accompanying notes 53-57.
11. See, e.g., Daniel Akst, Junk Mail: The Battle Continues, L.A. Times, May 27, 1996, at D1; Mark Eckenwiler, Just the Fax, Ma'am, NetGuide, Mar. 1996, at 37; Bob Henry, Does Fax Ad Prohibition Bear on E-Mail Spamming?, CommunicationsWeek, Nov. 25, 1996, at 40; Steven William Rimmer, Death to Spam: A Guide to Dealing with Unwanted E-Mail Sept. 22, 1997, <http://www.mindworkshop.com/alchemy/nospam.html>; Russ Smith, What's Covered by the TCPA?, Sept. 7, 1997, <http://www.russ-smith.com/whats.asp>; Mark J. Welch, Broadcast Fax and Junk Email Illegal, Sept. 23, 1997, <http://www.ca-probate.com/faxlaw.htm>.
12. Section 227(b)(3)(B) of the TCPA provides for statutory damages of $500 for each violation. Robert Arkow of California filed a small claims action against CompuServe in February 1995 based upon this provision, seeking $1,000 in statutory damages for two unsolicited e-mail advertisements he received from CompuServe, and an additional $1,000 in punitive damages based upon his claim that he had previously notified CompuServe of his desire not to receive such messages. The parties settled under undisclosed terms. See Robert A. Cronkleton, Junk on the E-Mail, Kansas City Star, Mar. 12, 1996, at F2; Bruce V. Bigelow, Infuriated Client Sues over Junk E-Mail, San Diego Union-Trib., Feb. 19, 1995, at H1; Bill Husted, Return to Sender, Atlanta J. & Const., Feb. 15, 1995, § E, at 2; Eckenwiler, supra note 11.
13. See Moser v. FCC, 46 F.3d 970 (9th Cir. 1995) (rejecting First Amendment challenge to ban on prerecorded calls to residences), rev'g 826 F. Supp. 360 (D. Or. 1993); Destination Ventures, Ltd., v. FCC, 46 F.3d 54 (9th Cir. 1995) (rejecting First Amendment challenge to ban on unsolicited fax advertisements), aff'g 844 F. Supp. 632 (D. Or. 1994).
14. See, e.g., Deborah L. Hamilton, Note, The First Amendment Status of Commercial Speech: Why the FCC Regulations Implementing the Telephone Consumer Protection Act of 1991 Are Unconstitutional, 94 Mich. L. Rev. 2352 (1996); Paul S. Zimmerman, Note and Comment, Hanging Up on Commercial Speech: Moser v. FCC, 71 Wash. L. Rev. 571 (1996); Howard E. Berkenblit, Note, Can Those Telemarketing Machines Keep Calling Me?--
The Telephone Consumer Protection Act of 1991 After Moser v. FCC, 36 B.C. L. Rev. 85 (1994).15. See Lutz Appellate Servs. v. Curry, 859 F. Supp. 180 (E.D. Pa. 1994).
16. Robert Arkow's suit terminated in an undisclosed settlement. See supra note 12. While it is possible that other courts have addressed unsolicited e-mail claims under the TCPA, searches of federal and state case law and relevant Internet discussion forums revealed no such reports as of December 1996.
This Article focuses on unsolicited e-mail messages that are commercial in nature. While most opponents of unsolicited bulk e-mail do not distinguish between commercial and noncommercial messages, see, e.g., Scott Hazen Mueller, Serving Spam, Dec. 19, 1996, Post No. 4, <http://www.hotwired.com/braintennis/96/51/index3a.html>, the TCPA applies only to "unsolicited advertisement[s]." 47 U.S.C. § 227(b)(1)(C). In any event, most unsolicited bulk e-mail currently seems to be commercial in nature. See Abby Franquemont-
Guillory, Unsolicited versus Commercial Email, Sept. 24, 1997, <http://www.vix.com/spam/others/uce.html>; Steven William Rimmer, Death to Spam: A Guide to Dealing with Unwanted E-Mail Sept. 22, 1997, <http://www.mindworkshop.com/alchemy/nospam.html>. 17. See Richard G. Barrows, Fax Law--
A Compendium of Reported Cases, Law Prac. Mgmt., Nov./Dec. 1991, at 28; Patricia Bordman, Telefacsimile Documents: A Survey of Uses in the Legal Profession, 36 Wayne L. Rev. 1361, 1361-62 & n.6 (1990). The facsimile machine was invented in 1842. See Barrows, supra, at 28.18. See Jerry Hirsch, The Fax: It's Not Just for Business, Orange County Reg., Jan. 31, 1994, at D23 (25 million fax machines and fax modems in U.S.); Phil Waga, Fax Machines Making Couriers Obsolete, Gannett News Service, Dec. 8, 1992, available in LEXIS, News Library, US File (10.1 million fax machines in 1991, up from 300,000 in 1983); 136 Cong. Rec. H5818 (daily ed. July 30, 1990) (statement of Rep. Markey) (2 million fax machines).
19. See 136 Cong. Rec. H5818 (daily ed. July 30, 1990) (statement of Rep. Markey) (30 billion pages are faxed each year).
20. See Bradford W. Hildebrandt, The Use of Facsimile by Law Firms, N.Y.L.J., Mar. 11, 1986, at 4; George Pajari, Comp.dcom.fax FAQ: Glossary and Background Information, June 16, 1996, <http://www.faximum.com/faqs/fax.glossary>. The Group III designation refers to a standard defined by the International Telephone and Telegraph Consultative Committee (CCITT), now known as the International Telecommunication Union's Telecommunication Standardization Sector (ITU-T), and the Electronics Industry Association (EIA), which publishes a U.S. version of the standard. See ITU-T, Recommendation T.4: Standardization of Group 3 Facsimile Apparatus for Document Transmission (rev. 1993); Electronics Industries Ass'n, EIA-465: Group 3 Facsimile Apparatus for Document Transmission (1981).
21. A Congressional committee considering a predecessor bill to the TCPA noted that an advertiser with a single fax machine could send tens of thousands of unsolicited messages per week. See H.R. Rep. 102-317, at 6-7 (1991). Businesses received an average of three to four unsolicited faxes per week before the TCPA was enacted. See Edwin J. Broecker, Note, FAX unto Others ...: A Constitutional Analysis of Unsolicited Facsimile Statutes, 23 Ind. L. Rev. 703, 704 n.8 (1990). Fax advertising was used by many different types of businesses. See, e.g., 135 Cong. Rec. E1462 (daily ed. May 2, 1989 (statement of Rep. Markey); 137 Cong. Rec. S9840 (daily ed. July 11, 1991) (statement of Sen. Hollings). One of the leading fax advertisers was Sanford Wallace, who now runs Cyber Promotions, an e-mail marketing firm. See Jana Sanchez-
Klein, Meet the Most Hated Man on the Internet, Balt. Sun, May 28, 1996, at 1D. 22. Connecticut enacted the first statute banning unsolicited fax advertisements in 1989; several other states followed with similar legislation. See Robert Estill, Junk Fax Glut Stirs Cry for Ban, San Diego Union-Trib., Nov. 12, 1989, at A1. The federal TCPA was passed by Congress in November 1991 and signed into law by President George Bush on December 23, 1991.
23. See 47 U.S.C. § 227(a)(4), (b)(1)(C) (1994).
24. See generally Brian G. Gilpin, Note, Attorney Advertising and Solicitation on the Internet: Complying with Ethics Regulations and Netiquette, 13 J. Marshall J. Computer & Info. L. 697, 721 (1995) ("Electronic mail is transmitted over phone lines, local area networks, fiber optic networks, satellite links, or a combination thereof.").
25. Like a fax machine, a modem converts data to an audible signal that can be transmitted over a telephone line. A modem normally uses an asynchronous full-
duplex modulation scheme and maintains a constant transmission speed throughout a connection, however, while a fax machine uses a synchronous half- duplex scheme and switches to a lower speed to transmit control information between pages. See George Pajari, Comp.dcom.fax FAQ: Frequently Asked Questions about Fax, Nov. 8, 1996, <http://www.faximum.com/faqs/fax.questions>. While some data modems use proprietary compression schemes, most comply with industry standards such as V.34, a standard for 28.8 kbps modems. See ITU-T, Recommendation V.34 (1994). A computer-
based fax modem combines the capabilities of a fax machine and a data modem, and can communicate with both types of devices. Most computers sold today include a fax modem. See Jerry Hirsch, The Fax: It's Not Just for Business, Orange County Reg. (California), Jan. 31, 1994, at D23. Users of computer bulletin board systems (BBSs) commonly exchange e-mail over telephone lines. Individuals can also send and receive e-mail using commercial online services and Internet service providers, both of which normally offer dial-up connections.
26. Interconnections between major networks, now commonplace, were once a primary basis for selecting an e-mail provider. See Brock N. Meeks, E-Mail Economics, Byte, Apr. 1, 1989, at 151 (noting that only two of four popular e-mail services profiled were interconnected to one another).
27. Other e-mail systems vary in transmission speeds. A message sent between two computers on the same local area network normally arrives almost instantaneously. A message sent between subscribers of two different FidoNet BBSs, on the other hand, typically arrives the day after it is sent, because FidoNet BBSs connect to one another via telephone calls made late at night. See Daniel Akst & James Weissman, The Other Internet--
FidoNet Turns Local BBSes into Part of a Global Network, NetGuide, Sept. 1, 1995, at 57.28. See, e.g., Dan L. Burk, Federalism in Cyberspace, 28 Conn. L. Rev. 1095, 1097 (1996); Alexander Gigante, Black Hole in Cyberspace: The Legal Void in the Internet, 15 J. Marshall J. Computer & Info. L. 413 (1997); Henry H. Perritt Jr., Dispute Resolution in Electronic Network Communities, 38 Vill. L. Rev. 349, 352 n.7 (1993).
29. See Martin Grossmann, Some Words About X.400, SMTP, and VMS-Mail, Oct. 24, 1995, <http://psiclc.psi.ch/www_aco_hn/docs/mail/protocols.html>; SMTP Resources Directory (András Salamon & Brad Knowles eds.), Jan. 8, 1997, <http://www.dns.net/smtprd/>; Free On-line Dictionary of Computing (Denis Howe ed.) <http://wfn-shop.princeton.edu/foldoc/> (spot: electronic mail, simple mail transfer protocol). The SMTP specification appears in Jonathan B. Postel, Simple Mail Transfer Protocol (Network Working Group Request for Comments No. 821), Aug. 1982, <http://ds.internic.net/rfc/rfc821.txt>.
30. The X.400 protocol, for example, was defined by the International Telephone and Telegraph Consultative Committee (CCITT), which now is the telecommunication standardization sector of the International Telecommunication Union (ITU-T). See Free On-line Dictionary of Computing, supra note 29 (spot: X.400, International Telecommunications Union); ITU-T, Recommendation F.400/X.400: Message Handling Service: Message Handling Service and System Overview (rev. 1996). Electronic data interchange (EDI) transmissions generally use the American National Standards Institute (ANSI) X12 standard; EDIFACT, the global standard; or a proprietary data exchange standard. See Free On-line Dictionary of Computing, supra note 29 (spot: electronic data interchange); Benjamin Wright, The Law of Electronic Commerce § 1.1.4 (2d ed. 1995).
31. See, e.g., Nothing but Net: Quit Stalling. Read This. Get on the Net, Wash. Post, Apr. 24, 1995, at R6 (1 billion/month); David Hoye, E-Mail Hits 1 Billion Sent Each Month, Phoenix Gazette, May 8, 1995, at C1 (same, up from 230 million/month in 1992); Julie Schmit, Pacific Bell Speeds E-mail on Internet, USA Today, Dec. 18, 1995, at 6B (1 billion/day); Scot Lehigh, Lost in the (E-)Mail, Boston Globe, Nov. 24, 1996, at D1 (stating that 560 billion e-mail messages are sent per year).
32. "Electronic discussion forums" include Usenet newsgroups, mailing lists, chat areas, web-
based discussion areas, and other forums in which messages are exchanged among groups of people. Some of these use electronic mail to transport the messages, while others use different communication protocols. This Article is concerned more with individual and bulk e-mail messages than with messages posted to discussion forums, though some of the same technology and protocols (such as listserver software programs) may be involved. 33. While anticommercialism is partially a relic of the academic and research-oriented network that preceded the Internet, it has probably been perpetuated by the nature of many early Internet advertisers, including lawyers, pornographers, multilevel marketers, and snake-
oil vendors. See infra notes 104-107 and accompanying text. 34. A single Internet e-mail message can be addressed to multiple recipients, and can be sent at very little cost to the sender. See James Gleick, Hold the Spam, N.Y. Times, Dec. 22, 1996, § 6, at 22 ("[H]umanity has never before encountered a form of advertising that costs its senders so little.
. . . Anyone with an Internet connection and a list of E-mail addresses can send millions of letters for, roughly, nothing."). As one e-mail advertiser explained: "It's just as cost effective for me to send to 6 million e-mail addresses as to 1 million e-mail addresses, so why bother being selective?" Simson Garfinkel, Spam King! Your Source for Spams Netwide!, Wired, Feb. 1996 (quoting Jeff Slaton).35. Cf. Jon Udell, Push Me, Pull You, Byte, Sept. 1, 1996, at 117 (complaining that many people send large documents by e-mail rather than simply posting them on the web).
36. One e-mail marketer, Cyber Promotions, sends over two million e-mail advertisements each day. See James Coates, Electronic Junk Mail Cluttering Cyberspace: America Online Sued for Blocking Pitches, Chi. Trib., Sept. 23, 1996, at C1. As early as 1991, The Wall Street Journal reported that one executive "decided not to read his e-mail when he printed it out one day and had 30 feet of messages." William M. Bulkeley, Sifting the Junk Out of E-Mail, Wall St. J., Feb. 28, 1991, at B1; see also Rochelle Sharpe, Work Week, Wall St. J., Nov. 22, 1994, at A1 (noting that top executives receive up to 300 "junk e-mail" messages per day).
37. Other common responses include requesting or demanding to be removed from the sender's mailing list; directing "flames" or mailbombs to the sender; and complaining to the sender's Internet service provider or in a public discussion forum. See infra note 129.
38. See infra notes 83-85 and accompanying text.
39. See Jan Norman, Reasonable Facsimiles, Orange County Reg., Mar. 25, 1996, at D14; Just the Fax?, Consumer Rep., Sept. 1996, at 28. It is possible to receive a fax without printing it out at all, using either a computer-
based fax modem or a fax machine which holds received faxes in memory or forwards them to another machine. See Michael M. Parker, Fax Pas: Stopping the Junk Fax Mail Bandwagon, 71 Or. L. Rev. 457, 461 n.18, 481 (1992) (discussing use of computer- based fax modems to filter incoming faxes); Hildebrandt, supra note 20, at 4 (discussing forwarding of faxes). Often, however, these approaches can cost more in time and equipment than they save in fax machine supplies. See Norman, supra; Parker, supra, at 461 n.18, 481. 40. See Just the Fax?, Consumer Rep., Sept. 1996, at 28 (stating that more expensive fax machines that employ laser printing technology can print at a slightly lower cost).
41. See Hildebrandt, supra note 20 (noting that most law firms simplify recordkeeping by charging a fixed cost per page for faxes sent, and not charging at all for those received, based upon the fact that faxes sent and received usually involve the same clients).
42. Larger online services and national Internet service providers generally have local access numbers in most major cities, but individuals in less populated areas often must pay long distance charges. In areas with local measured telephone service, individuals may pay for calls to local access numbers, either by the call or by the minute. Such costs do not apply to faxes, because telephone charges for fax transmissions are normally borne by the sender.
In 1996 most consumers paid hourly rates for access to commercial online services. See Wendy R. Leibowitz, Do Junkmailers Have Right to Send Unwanted E-mail?, Nat'l L.J., Oct. 21, 1996, at A7. The industry trend, however, seems to be toward flat-rate access, and most online services and Internet service providers now offer flat-rate access, at least as an option. In December 1996, America Online, the largest online service, shifted most of its subscribers to flat-rate accounts. See Peter H. Lewis, New Flat Rate Creates Surge In Use of America Online, N.Y. Times, Dec. 3, 1996, § D, at 2. But some providers are reconsidering flat-rate access, and many charge a higher rate for untimed accounts than they do for those with hourly fees. See Elizabeth Weise, Some Providers Turn Back Clock, Dayton Daily News, Jan. 11, 1997, at 4B.
43. See Wide-Area Networks: Update and Prognosis, Part 2, Seybold Rep. on Desktop Pub., May 20, 1996, at 4, available in 1996 WL 9310538.
44. Some providers assess charges for disk space consumed by stored files including e-mail messages, in addition to charges for time spent online. Others impose disk space quotas or even delete incoming messages when such quotas are reached. See, e.g., Gulf Coast Internet Co., Acceptable Use Policies, Dec. 4, 1996, <http://www.gulf.net/acceptable_use_policies.html>. One bulk e-mailer maintains a reserve fund to reimburse recipients of its advertisements for surcharges assessed by their Internet providers, but claims that such surcharges are extremely rare. See Robert Hicks, Profiting from Electronic Bulk Mail: Use an Aggressive Approach That Respects Internet Users, DM News, Aug. 5, 1996, at 35.
45. Unlike faxes, incoming e-mail messages can be filtered by the recipient relatively easily, depending upon the recipient's e-mail software. Sophisticated filtering programs can sort incoming messages by sender, subject matter, and other parameters, and can discard messages from unrecognized senders unread. See Hiawatha Bray, Getting Rid of Junk E-Mail, Boston Globe, Sept. 26, 1996, at D1; Daniel Akst, Info-Overloaded? Maybe It's Time to Embrace the Miracle of Filters, L.A. Times, Aug. 19, 1996, at D1; William M. Bulkeley, Sifting the Junk out of E-Mail, Wall St. J., Feb. 28, 1991, at B1. Some Internet users maintain multiple e-mail addresses for different purposes to help them prioritize messages that they receive.
While it is easy to delete unwanted e-mail messages, it is much more difficult to refuse delivery of such messages in the first place. The receiving mail server (normally a computer maintained by the Internet service provider or online service, not the end user) can refuse connections from known bulk e-mailers, but doing so may block all incoming messages from other subscribers of such "rogue" sites, and bulk e-mailers frequently circumvent such measures by forging mail headers and routing messages through intermediate computers. See CompuServe, Inc. v. Cyber Promotions, Inc., No. C2-96-1070 (S.D. Ohio Oct. 23, 1996) <http://www.jmls.edu/cyber/cases/cs-cp1.html>. America Online recently instituted a feature that automatically deletes incoming messages from known bulk e-mailers, but AOL's mail system apparently still accepts delivery of each message before deleting it. See Cyber Promotions, Inc. v. America Online, Inc., 948 F. Supp. 456 (E.D. Pa. 1996); Coates, supra note 36.
46. See Sally Hambridge, Netiquette Guidelines at 5 (Network Working Group Request for Comments No. 1855), Oct. 1995, <http://ds.internic.net/rfc/rfc1855.txt>.
47. One bulk e-mailer has offered to send messages to 500,000 people for $500. See R. Lee Sullivan, You've Got Spam, Forbes, Jan. 22, 1996, at 37. A distributor of bulk e-mail software claims that its program can send about 1000 messages per hour using an ordinary dial-up Internet account. See Mailloop Software, Mailloop Overview (visited Dec. 8, 1996) <http://www.mailloop.com/overview.html>.
48. See H.R. Rep. 102-317, at 25 (1991). Many fax machines will automatically redial a number periodically upon receiving a busy signal, but may give up after a specified number of attempts. In any event, a fax machine that is tied up receiving a transmission is unavailable for use in transmitting or receiving another document at the time, potentially causing great inconvenience to the user of the machine.
49. See supra note 45.
50. "Unlike other communications media, the telephone commands our instant attention. Junk mail can be thrown away. Television commercials can be turned off. The telephone demands to be answered." 137 Cong. Rec. S18,317 (daily ed. Nov. 26, 1991) (statement of Sen. Pressler).
51. See supra note 45.
52. Some computer users probably consider anonymous bulk e-mail (messages sent without a return address or other identification of the sender, or even with a false return address) to be more intrusive than telephone calls, since there is no way for the recipient to register his or her displeasure about receiving the message. Cf. The Automated Telephone Consumer Protection Act of 1991, S. 1462; The Telephone Advertising Consumer Protection Act, S. 1410; and Equal Billing for Long Distance Charges, S. 857, Hearing Before the Subcomm. on Communications of the Senate Comm. on Commerce, Science, and Transportation, 102d Cong. 9 (1991) (statement of Steve Hamm, Adm'r, S.C. Dep't of Consumer Affairs) (noting that recipients of automated telemarketing calls "wish they had the ability to slam the telephone down on a live human being").
Another burden of unsolicited e-mail that is sometimes mentioned is the risk of contracting a computer virus. See, e.g., Coates, supra note 36. A virus cannot be transmitted as a normal e-mail message, although an e-mail message may have an attached file containing executable program code that includes a virus. The recipient thus would have to decode and run the attached file to contract the virus, although some e-mail programs can do this automatically. See Les Jones, Good Times Virus Hoax Frequently Asked Questions, Dec. 21, 1996, <http://www.public.usit.net/lesjones/goodtimes.html>. The risk of computer viruses may be much smaller than most people believe. See Rob Rosenberger, Computer Virus Myths, Oct. 4, 1997, <http://www.kumite.com/myths/> (referring to sensationalistic media coverage and exaggerated claims by producers of antivirus software); Computer Incident Advisory Capability, U.S. Dep't of Energy, Bulletin No. H-05, Internet Hoaxes: PKZ300, Irina, Good Times, Deeyenda, Ghost, Nov. 20, 1996, <http://ciac.llnl.gov/ciac/bulletins/h-05.shtml> (noting that CIAC spends "much more time de-bunking hoaxes than handling real virus incidents").
53. See supra note 9 and accompanying text.
54. One possible distinction is that a conventional fax machine is a single piece of equipment that meets the statutory definition, while a computer system includes two or more separate components which satisfy the definition only collectively. However, the statute defines a TFM using a collective noun ("equipment"), see 47 U.S.C. § 227(a)(2), and elsewhere it uses the singular noun "device" to refer to both a computer and a TFM, see § 227(b)(1)(C).
55. Earlier versions of the TCPA and related legislation defined the term TFM conjunctively (as equipment capable of both sending and receiving faxes), see, e.g., H.R. 2184, 101st Cong. (1989), reprinted in Telemarketing Practices: Hearing on H.R. 628, H.R. 2131, and H.R. 2184 Before the Subcomm. on Telecommunications and Finance of the House Comm. on Energy and Commerce, 101st Cong. 12-15 (1989); H.R. 2921, 101st Cong., 136 Cong. Rec. H5818 (daily ed. July 30, 1990), or merely as equipment capable of sending faxes, see, e.g., S. 1462, 102d Cong., 137 Cong. Rec. S9874 (daily ed. July 11, 1991).
56. See supra note 25.
57. See 47 U.S.C. § 227(a)(2).
58. See infra text accompanying notes 71-88.
59. See 1A Norman J. Singer, Statutes and Statutory Construction § 20.08 (5th ed. 1993). But see 2A Norman J. Singer, Statutes and Statutory Construction, § 47.38 (5th ed. 1992) (a court may supply words omitted due to inadvertence).
60. Willful violations of the TCPA are subject to punishment by fine or imprisonment under 47 U.S.C. § 501 (1994).
61. 47 U.S.C. § 227(b)(1)(C).
62. See Colautti v. Franklin, 439 U.S. 379, 392 (1979) (referring to "the elementary canon of construction that a statute should be interpreted so as not to render one part inoperative").
63. See 47 U.S.C. § 227(d)(1), (2). The FCC has interpreted § 227(d)(2) to require merely that fax machines be capable of marking the identifying information automatically once the user has supplied the information to the machine. See Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 10 F.C.C.R. 12,391, ¶ 21 (1995).
64. It is unclear whether the telephone number disclosure requirement was intended merely to identify the sender or to provide the recipient with a convenient means of responding. (The telephone number provided may be either a voice or a fax number. See 47 U.S.C. § 227(d)(1)(B), (d)(2).) In either case, a more appropriate analog for e-mail messages would probably be to require inclusion of a valid return e-mail address rather than a telephone number, though the language of the statute provides no basis for such a requirement.
65. See S. Rep. No. 102-178, at 9 (1991), reprinted in 1991 U.S.C.C.A.N. 1968, 1976. Actually, manufacturers of "low-end" fax machines requested that enforcement of this requirement be delayed, claiming that such machines did not automatically imprint the date and time on each document. See Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 7 F.C.C.R. 8660 (1992). The FCC denied the manufacturers' request, effectively mandating that all fax machines include an internal clock. See id.; Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 10 F.C.C.R. 12,391, ¶ 25 (1995).
There was some controversy over whether § 227(d)(2) should apply to computer-
based fax modems. The FCC ultimately concluded that a computer- based fax modem qualifies as a TFM under the statute, and therefore must mark identifying information on each document that it transmits. See 47 C.F.R. § 68.318(c)(3) (1996); Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 10 F.C.C.R. 12,391, paras. 27-31 (1995); see also infra notes 91-92 and accompanying text. 66. Most e-mail programs do, however, permit the user to enter arbitrary text in one or more fields identifying the sender of a message. A telephone number or other information could easily be included here, and (depending upon the software) could be included in each subsequent outgoing message by default, just a fax machine marks each outgoing fax with the sender's name and telephone number.
67. See Eckenwiler, supra note 11.
68. The preceding section, 47 U.S.C. § 226 (1994), concerns telephone operator services; the following section, 47 U.S.C. § 228 (1994), concerns 900 numbers and other pay-
per- call services. 69. See supra note 26 and accompanying text.
70. In many instances it may be relatively foreseeable that the recipient of an e-mail message will receive the message using a telephone connection. For example, an e-mail address terminating in "@aol.com" represents an America Online (AOL) subscriber. An AOL subscriber who has Internet access via a direct network connection (perhaps at work or on a university campus) can access the system via the Internet, but most AOL subscribers use modems to access the system, either directly or through a dial-up Internet account. Therefore, one who sends e-mail to an AOL subscriber can foresee that it will almost certainly be received over a telephone line.
While e-mail is normally is not transmitted directly from the sender's computer to the recipient's own telephone line, the statute does not require a direct transmission; it merely requires that the advertisement be sent to a telephone facsimile machine. See 47 U.S.C. § 227(b)(1)(C). The sender's knowledge of the recipient's means of receiving e-mail is probably relevant only in determining whether the violation is willful, which affects the amount of damages. See 47 U.S.C. § 227(b)(3). However, devices that blur the distinctions between these technologies (such as e-mail-
to- fax gateways) may render such distinctions less meaningful. 71. See Hum in Electronic Mail Seen, Christian Sci. Monitor, Jan. 19, 1982, at 11 (930 million e-mail messages were sent in 1980).
72. See William M. Bulkeley, Sifting the Junk Out of E-Mail, Wall St. J., Feb. 28, 1991, at B1 ("Electronic junk mail is becoming a nuisance for many personal-computer users
. . . ."). 73. All of the definitions of TFM that appear in various versions of the statute are stated in terms of the function of the device (sending or receiving printed documents over telephone lines) rather than the method it uses. See supra note 55.
74. See H.R. 2184, 101st Cong. (1989), reprinted in Telemarketing Practices: Hearing on H.R. 628, H.R. 2131, and H.R. 2184 Before the Subcomm. on Telecommunications and Finance of the House Comm. on Energy and Commerce, 101st Cong. 12-15 (1989).
75. See id.
76. See H.R. 1304, 102d Cong., H.R. Rep. 102-317, at 2-5 (1991); S. 1410, 102d Cong., 137 Cong. Rec. S8992 (June 27, 1991) (companion bills). The bill included the following mandate:
(e) Consideration of Facsimile Machine Restrictions.--
Within 120 days after the date of enactment of this section, the Commission shall initiate a rulemaking proceeding to prescribe rules to restrict the use of any telephone facsimile machine or computer or other electronic device to send any unsolicited advertisement to the telephone facsimile machine of any person. In establishing such restrictions, the Commission shall consider--
(1) the extent to which unsolicited advertisements are transmitted through telephone facsimile machines;
(2) the extent to which recipients of such advertisements incur costs for such receipt; and
(3) the most cost effective methods of preventing advertising abuses with telephone facsimile machines.H.R. 1304, 102d Cong., H.R. Rep. 102-317, at 5.
77. See S. 1410, 102d Cong., 137 Cong. Rec. S16,200 (daily ed. Nov. 7, 1991).
78. See S. 1462, 102d Cong., 137 Cong. Rec. S9874 (daily ed. July 11, 1991).
79. See 137 Cong. Rec. H11,307 (daily ed. Nov. 26, 1991).
80. See 137 Cong. Rec. S18,782 (daily ed. Nov. 27, 1991).
81. See Telephone Consumer Protection Act of 1991, Pub. L. No. 102-243, § 2, 105 Stat. 2394, 2394-95 (1991).
82. See id. While seizure of telephone lines is characterized as a threat to public safety, the findings appear to be referring to the use of automated dialing systems rather than fax transmissions. See id. § 2(5).
83. 135 Cong. Rec. E1462 (daily ed. May 2, 1989) (statement of Rep. Markey).
Similar statements were made in support of the Telephone Advertising Consumer Rights Act and the Automated Telephone Consumer Protection Act when they were introduced two years later: "Unsolicited facsimile advertising ties up fax machines and uses the called party's fax paper. This costs the recipient both time and money." 137 Cong. Rec. S8992 (daily ed. June 27, 1991) (statement of Sen. Pressler).
These unsolicited advertisements prevent the owners from using their own fax machines for business purposes. Even worse, these transmissions force the recipient to pay for the cost of the paper used to receive them. These junk fax advertisements can be a severe impediment to carrying out legitimate business practices and ought to be abolished.
137 Cong. Rec. S9874 (daily ed. July 11, 1991) (statement of Sen. Hollings).
84. Jerry Knight, The Junk Fax Attack: Why Maryland May Outlaw Unsolicited Advertisements, Wash. Post, May 23, 1989, at C3, quoted in 136 Cong. Rec. H5820 (daily ed. July 30, 1990) (statement of Rep. Markey).
Markey also referred to the cost-
shifting effect as the House considered the final version of the TCPA: When those junk faxes start coming over your machine, you do not think like a Republican or a Democrat, you just think how are you going to be able to get your hands around the neck of the person making you pay with your paper for whatever message they are trying to send you.
137 Cong. Rec. H11,314 (daily ed. Nov. 26, 1991) (statement of Rep. Markey).
85. Even in 1989, when all but the most expensive fax machines required thermal paper, a one-
page fax probably cost the average recipient less than 10 cents to print. See, e.g., A Bold Plan to End "Junk Fax," S.F. Chron., Jan. 20, 1989; Peter Burrows, Bill Would Put Some Fax on Hold, Newsday, June 29, 1989, at 43; cf. Destination Ventures, Ltd., v. FCC, 46 F.3d 54 (9th Cir. 1995) (contrasting plaintiff's estimate of 2 1/2 cents per page with FCC's claim of 3 to 40 cents); Carroll Lachnit, Electronic "Junk Mail": Judge Orders Fax Sender to Pay Businessman 22 Cents for Sending Unsolicited Ad, Orange County Reg., July 3, 1991, at B8 (describing small claims judgment of 22 cents for an unsolicited fax, apparently one page long). As one commentator noted, the time required to take a one-minute marketing call is worth much more than the cost of printing a one- page fax. See Patrick Cox, Curbing "Junk Fax": The Market Will Deal with Fax Attacks, USA Today, Feb. 8, 1989, at 8A. 86. See supra note 47 and accompanying text; cf. Telemarketing Practices: Hearing on H.R. 628, H.R. 2131, and H.R. 2184 Before the Subcomm. on Telecommunications and Finance of the House Comm. on Energy and Commerce, 101st Cong. 21 (1989) (statement of Rep. Shays) ("Junk mail may be annoying, but the sender at least pays the cost of the stamp and the paper it's printed on.").
87. See 136 Cong. Rec. H5820 (daily ed. July 30, 1990) (statement of Rep. Ritter); H.R. Rep. 102-317, at 25 (1991).
88. The governors of both Connecticut and Maryland were inundated with faxes critical of unsolicited fax legislation pending in those states, prompting both governors to sign the legislation. See 136 Cong. Rec. H5820 (daily ed. July 30, 1990) (statement of Rep. Ritter). Cleveland Browns' fans launched a "fax attack" on the Houston Oilers' office before a football game. See id. A less dramatic but more relevant incident was described in a 1989 Wall Street Journal article:
After a big incoming order was rendered illegible by a 10-page junk fax that jammed its machine, American Small Business Computers Inc. in Pryor, Okla., tried to create a computer program that would turn around and blacken an entire roll of any junk advertiser's fax paper. But the program didn't work.
Michele Manges, Junk Mail in the Age of Fax, Wall St. J., May 3, 1989.
89. See 47 U.S.C. § 227(b)(2).
90. See 47 C.F.R. § 64.1200(f)(2) (1996).
91. See 47 C.F.R. § 68.318(c)(3) (1996); Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 10 F.C.C.R. 12,391, paras. 27-31 (1995).
92. "The question of whether the definition of telephone facsimile machine includes fax boards is a matter of statutory interpretation that falls squarely within the scope of this proceeding. The statute is ambiguous with respect to this question and the legislative history provides no guidance."
Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 10 F.C.C.R. 12,391, ¶ 30.
93. Since the TCPA was enacted, Congress has enacted another statute which imposes similar restrictions on telemarketers, though it does not repeat the ban on unsolicited fax advertising. The Telemarketing and Consumer Fraud and Abuse Prevention Act, 15 U.S.C. §§ 6101-08 (1994), is administered by the Federal Trade Commission rather than the FCC. The FTC's Telemarketing Sales Rule, 16 C.F.R. § 310 (1996), implements that statute. The FTC originally proposed to include e-mail and other online marketing efforts in the scope of the rule, but relented following protests by online industry groups. See Comments of the Interactive Services Association on the Proposed FTC Telemarketing Rules, Mar. 31, 1995, <http://www.isa.net/pubpol/ftctele.html>; Memorandum from Bill Moroney and Sarah Reardon to the Government Affairs Committee, Electronic Messaging Association, concerning the Proposed FTC Telemarketing Sales Rule, May 4, 1995, <http://www.ema.org/html/at_work/ftctelem.htm>.
94. The Clipper chip proposal was an ill-
fated attempt by the U.S. government to provide people with a relatively secure means of encrypting communications, but with a back door that could be used by authorized government agencies. See generally A. Michael Froomkin, The Metaphor Is the Key: Cryptography, the Clipper Chip, and the Constitution, 143 U. Penn. L. Rev. 709 (1995). 95. The Communications Decency Act (CDA) was part of the Telecommunications Act of 1996, Pub. L. No. 104-104, § 502, 110 Stat. 56, 133-43. Most of the CDA was struck down as unconstitutional in ACLU v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996), aff'd, 117 S. Ct. 2329 (1997), and Shea v. Reno, 930 F. Supp. 916 (S.D.N.Y. 1996), aff'd, 117 S. Ct. 2501 (1997).
96. Stratton Oakmont, Inc. v. Prodigy Services Co., No. 31063/94, 1995 N.Y. Misc. LEXIS 229, 1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995), <http://www.jmls.edu/cyber/cases/stratton.txt> (holding that by exercising editorial control, online service acted as publisher rather than distributor for purposes of defamation action). The holding in Stratton Oakmont has been widely criticized and was nullified by a provision in the Communications Decency Act not challenged in the ACLU and Shea actions. See 47 U.S.C.A. § 230(c) (West Supp. 1997).
97. See generally Gigante, supra note 28; David E. Sorkin, Revocation of an Internet Domain Name for Violations of "Netiquette": Contractual and Constitutional Implications, 15 J. Marshall J. Computer & Info. L. 587 (1997); Kim S. Nash, The Enforcers, ComputerWorld, Apr. 15, 1996, at 103.
98. See, e.g., Scott Hazen Mueller, Serving Spam, Post No. 2, Dec. 17, 1996, <http://www.hotwired.com/braintennis/96/51/index1a.html>.
99. See Kate Maddox, Online Marketers Look Past the Web, Advert. Age, June 3, 1996, at 38 (noting enforcement difficulties presented by e-mail from Liechtenstein); cf. Burk, supra note 28, at 1134 (arguing that state regulation of Internet activities is constrained by the Due Process Clause of the Fourteenth Amendment and the dormant Commerce Clause).
100. Flight abroad is a more likely possibility for e-mail advertisers than for those advertising by fax, since sending faxes from abroad requires the sender to pay international long distance telephone charges, while international e-mail is generally no more expensive than domestic e-mail.
Many e-mail advertisers promote goods and services that can be delivered via the Internet, such as mailing lists, web design services, and sexually-
oriented materials. Such businesses may exist primarily as a presence on the Internet, with little or no physical base. See, e.g., State v. Granite Gate Resorts, No. C6-95-7227, 1996 WL 767431 (Minn. Ramsey County Dist. Ct. Dec. 11, 1996) <http://www.jmls.edu/cyber/cases/ggorder>, aff'd, 568 N.W.2d 715 (Minn. Ct. App. 1997) (asserting jurisdiction over a Nevada resident's Internet gambling service located in Belize); Scott Hazen Mueller, Serving Spam, Post No. 2, Dec. 17, 1996, <http://www.hotwired.com/braintennis/96/51/index1a.html> (noting that phone sex services and pager scams have moved offshore, and bulk e-mailers now are doing so). The TCPA applies to the party whose goods or services are being advertised, however, so U.S.-based firms would not be able to circumvent the law simply by engaging foreign bulk e-mail services. See Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 10 F.C.C.R. 12,391, ¶ 35 (1995). 101. The TCPA's ban on unsolicited fax advertising was upheld by the Ninth Circuit in Destination Ventures, Ltd., v. FCC, 46 F.3d 54 (9th Cir. 1995). The court in Destination Ventures held that even the plaintiff's estimate of
2 1/2 cents per page of fax paper produced a significant shift in advertising costs to consumers, justifying the ban on unsolicited fax advertising. Id. at 56-57. The court noted, however, that it would consider the circumstances at the time the statute was enacted, despite the fact that technological advancements might subsequently reduce the burdensome effects of fax advertising. Id. at 57.102. While large, established businesses may be able to able to attract consumers to their web sites by name recognition and advertising in traditional media, small businesses are more likely to turn to less expensive marketing methods such as unsolicited e-mail advertising. See Maddox, supra note 99; Janet Kornblum, Spam King Challenged (Dec. 5, 1996) <http://www.news.com/News/Item/0,4,5967,00.html>.
103. Cf. David Post, The Case of Virtual Junk Mail, Am. Law., Nov. 1996, at 97 (arguing that people should be able to "choose from a diverse set of communities, each with its own rules
. . . ."). 104. See, e.g., Judith H. Bernstein, Attack of the Killer Spam, NetGuide, Nov. 11, 1995, at 91; Gleick, supra note 34.
105. See, e.g., Garfinkel, supra note 34; Axel Boldt, Blacklist of Internet Advertisers, Jan. 18, 1997, <http://math-www.uni-paderborn.de/~axel/BL/blacklist.html>.
106. See Fred Elbel, How to Get Rid of Junk Mail, Spam, and Telemarketers, Jan. 20, 1997, <http://www.csn.net/~felbel/jnkmail.html>; see also Frank Sowa, Cyberworld Monitor, Boardwatch, Dec. 1996 (describing investigations and monitoring of e-mail advertisers by FBI, FTC, IRS, SEC, and several states).
107. See Gleick, supra note 34.
108. See Tracey M. Dooms, Junk Mail Moves On Line: Effective Advertising or Just a Nuisance?, Indpls. Bus. J., Nov. 18, 1996, at 21. Some e-mail advertisers do prequalify recipients or target specific audiences, see, e.g., Judith H. Bernstein, Marketing--
Bulk Is Big Business, NetGuide, Dec. 1, 1996, at 30; Rosalind Resnick, Correcting Politically Incorrect Online Marketing, DM News, Dec. 2, 1996, at 40, but this approach seems to be the exception rather than the rule.109. Existing statutes other than the TCPA also could be interpreted to prohibit unsolicited e-mail messages. America Online and CompuServe, for example, have argued that unsolicited e-mail messages directed at their subscribers violate the Computer Fraud and Abuse Act, 18 U.S.C. § 1030 (1994). See Cyber Promotions, Inc. v. America Online, Inc., 948 F. Supp. 436 (E.D. Pa. 1996); CompuServe, Inc. v. Cyber Promotions, Inc., No. C2-96-1070 (S.D. Ohio Oct. 23, 1996) <http://www.jmls.edu/cyber/cases/cs-cp1.html>; Wendy R. Leibowitz, High Tech Is Reshaping Legal Basics: Geography Isn't Destiny, Nat'l L.J., Sept. 23, 1996, at A1.
110. See S. 13, 69th Leg., Reg. Sess. (Nev. 1997). State regulation of unsolicited e-mail is likely to fail for the same reasons that states were frustrated in their attempts to regulate unsolicited faxes before the enactment of the TCPA. See Parker, supra note 39, at 479-81. However, efforts undertaken at the state level could serve as a useful model for federal legislation.
111. Representative Edward Markey reportedly has considered introducing federal legislation that would ban unsolicited commercial e-mail. See Garfinkel, supra note 34.
112. Unsolicited e-mail is analogous to the problem of the commons, in which one individual's consumption of shared resources imposes costs upon all others. Even a small number of nonparticipants thus could render a market solution ineffectual. See Akst, supra note 11.
113. E-mail advertisers use various programs to "harvest" e-mail addresses from Usenet databases and other sources. Many Internet users have responded by posting messages anonymously or under a fictitious address. See Henry, supra note 11.
114. See James Coates, Cyberlynched! A Victim of Mob Justice on the Internet Frontier Lives to Tell the Tale, Chi. Trib., Jan. 16, 1997, § 5, at 1.
115. See Ed Foster, Junk E-Mailers Use Fake Identification to Slip through AOL's Spam Ban, InfoWorld, Jan. 6, 1997, at 42.
116. See Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 10 F.C.C.R. 12,391, ¶ 37 (1995).
117. A similar response is to complain to the sender's "postmaster," system administrator, or Internet service provider. This approach is likely to be successful only if the sender has violated applicable acceptable use policies. See Al Bredenberg, Caveat Spammor: Marketers Are Trying to Legitimize Internet Junk Mail, or Spam, Through New Methods, Internet World, July 1996, at 68.
118. See Michelle V. Rafter, Stop Spam, Dec. 19, 1996, <http://www.cnet.com/Content/Features/Howto/Spam/ss01.html>.
119. 47 C.F.R. § 64.1200(e)(2)(vi) (1996) (requiring that telemarketers maintain "do-
not- call" lists). 120. In addition to the company-
specific "do- not- call" lists required pursuant to the TCPA, industry- wide direct mail and telemarketing exclusion lists are sponsored by the Direct Marketing Association. See The Automated Telephone Consumer Protection Act of 1991, S. 1462; The Telephone Advertising Consumer Protection Act, S. 1410; and Equal Billing for Long Distance Charges, S. 857, Hearing Before the Subcomm. on Communications of the Senate Comm. on Commerce, Science, and Transportation, 102d Cong. 35 (1991) (statement of Richard A. Barton, Sr. V.P., Gov't Affairs, Direct Marketing Ass'n). 121. See, e.g., Bernstein, supra note 108; Gleick, supra note 34; Jana Sanchez-
Klein, supra note 21. But see Dooms, supra note 108 (noting that messages sent subsequent to a removal request could be considered illegal harassment under the Communications Decency Act, 47 U.S.C. § 223(a)). 122. See Foster, supra note 115 ("[T]he more often one replies to a junk e-mail message (even if it's a 'remove' request), the more likely one is to be targeted for additional messages from the same domain.").
123. See Gleick, supra note 34.
124. See supra text accompanying note 45.
125. "Filters have one major downfall: you can't block addresses you don't know about, and spammers change addresses more often than Dennis Rodman changes his hair color." Michelle V. Rafter, Stop Spam, Dec. 19, 1996, <http://www.cnet.com/Content/Features/Howto/Spam/ss03.html>.
126. See Clifford Stoll, Silicon Snake Oil 97 (1995). When America Online began filtering out messages from known bulk e-mailers, it (perhaps inadvertently) blocked out entire Internet service providers believed to harbor spammers, preventing any of those providers' subscribers from sending messages to AOL subscribers. See Kim Girard & Mitch Wagner, You Can't Send Mail There from Here: Anti-
Spam Efforts Hinder E-Mail Delivery, ComputerWorld, Dec. 16, 1996, at 3.127. See supra text accompanying note 45.
128. See infra text accompanying notes 141-42.
129. See, e.g., Bredenberg, supra note 117, at 72; Garfinkel, supra note 34; Nash, supra note 97; Wallace Wang, Notes from the Underground, Boardwatch, Dec. 1996; Boldt, supra note 105.
130. See Garfinkel, supra note 34 (noting that e-mail advertiser Jeff Slaton advises clients to advertise using only a temporary voice-
mail telephone number); see also Foster, supra note 115 (describing "hit- and- run tactics" used by e-mail advertisers). 131. "Consumer reaction [to unsolicited commercial e-mail] is pretty much the same as it is to traditional direct mail
. . . . At first the hate mail seems a little nasty. . . but then, go into the mail room of any large mailer or telemarketer and see what you find." Hicks, supra note 44.132. See Michelle V. Rafter, Stop Spam (Dec. 19, 1996) <http://www.cnet.com/Content/Features/Howto/Spam/ss08.html>.
133. See David Hoye, Battling Junk E-Mail: Blacklists the Key Weapon in Cyberspace War, Ariz. Republic/
Phoenix Gazette, Apr. 29, 1996, at E1.While blacklists and similar attempts to educate Internet users and bulk e-mailers may have limited success at diminishing the effectiveness of unsolicited e-mail advertising, the cost of such advertising is so low that it is likely to continue in spite of such efforts. Even an infinitesimal response rate may be sufficient for a direct e-mail advertising campaign to break even, unless recipients can successfully shift some of the costs back to the advertiser.
134. See, e.g., Todd Wallack, Nothing Stops a Spammer, Network World, Jan. 13, 1997, at 1, 12.
135. See Direct Marketing Association & Interactive Services Association, Principles for Unsolicited Marketing E-Mail, June 4, 1996, <http://www.isa.net/pubpol/dma/spamming.html>.
Two newer organizations that also are examining e-mail advertising issues are the Direct Electronic Mail Marketing Association, see Bredenberg, supra note 117, at 72; and the Electronic Direct Marketing Association, see Bernstein, supra note 108.
136. See, e.g., Scott Hazen Mueller & Aliza R. Panitz, Sample Acceptable Use Policies, Nov. 21, 1996, <http://www.vix.com/spam/aup.html>; Scott Hazen Mueller, Serving Spam, Post No. 2, Dec. 17, 1996, <http://www.hotwired.com/braintennis/96/51/index1a.html>.
137. The Interactive Services Association's Guidelines on Online Solicitation, June 4, 1996, <http://www.isa.net/pubpol/dma/onlinesolicit.html>, for example, recommend disclosure of the names, e-mail addresses, and postal addresses of both the entity making the solicitation and the entity on whose behalf it is made. The Electronic Direct Marketing Association has indicated that its guidelines will require members to include at least a valid return e-mail address in each message. Electronic Direct Marketing Association, EDMA: Mission Statement, Nov. 18, 1996, <http://www.edma.org/mission.html>.
138. See supra note 129 and accompanying text.
139. See 47 U.S.C. § 227(d)(1) (1994).
140. While pseudonymous, anonymous, and perhaps even untraceable e-mail messages may be justifiable in some circumstances, there is little or no reason to permit such practices in the case of unsolicited commercial e-mail.
141. See, e.g., Akst, supra note 11 (suggesting that e-mail advertisements should have to be labelled as "junk," "bulk," or "advertising"); Resnick, supra note 108 (noting that Ralph Nader's Consumer Project on Technology and other groups advocate federally mandated labels on e-mail advertisements); Interactive Services Association, Guidelines on Online Solicitation, June 4, 1996, <http://www.isa.net/pubpol/dma/onlinesolicit.html> (suggesting that unsolicited commercial messages include three asterisks at the start of the subject field); ReplyNet, Inc., Unsolicited Junk E-Mail
. . . It's Bad for Business, Nov. 6, 1996, <http://www.reply.net/junkmail.html> (supporting legislation to require that unsolicited e-mail messages bear a code in the message header indicating the type of advertisement and the nature of the products being offered).142. See Scott Hazen Mueller, Serving Spam, Post No. 4, Dec. 19, 1996, <http://www.hotwired.com/braintennis/96/51/index3a.html> ("I don't care how the stuff is tagged, 10 million messages a day each by only a thousand different spammers is going to crash systems all over the Internet.").
143. See, e.g., Jonah Gitlitz, Opt-In Is Absolutely Unworkable, DM News, July 15, 1996, at 52; Ken Liebeskind et al., DMers Sound Off at DMS's List Day, DM News, Sept. 4, 1995, at 2.
144. See 16 C.F.R. § 310.4(b)(1)(ii) (1996); 47 C.F.R. § 64.1200(e)(2)(vi) (1996).
145. See 47 U.S.C. § 227(a)(4), (b)(1)(C) (1994).
146. See supra note 118 and accompanying text.
147. See Bernstein, supra note 108 (Electronic Direct Marketing Association); Bredenberg, supra note 117, at 72 (Direct Marketing Association); Larry Jaffee, 27-M E-Mail Address File Shopped; List Sparks Formation of Internet Regulatory Trade Association, DM News, Jan. 15, 1996, at 4 (Direct Electronic Mail Marketing Association); see also Akst, supra note 11 (suggesting establishment of a central opt-
out registry). 148. Internet users may at first be reluctant to participate in exclusion lists, for fear that such lists may be used as mailing lists by disreputable advertisers. See Aliza R. Panitz & Scott Hazen Mueller, Frequently Asked Questions about Spam (last modified Dec. 26, 1996) <http://www.vix.com/spam/faq.html> (noting that some people who have listed their addresses on existing exclusion lists have found themselves "flooded with spam
. . . If we compiled a list and gave it to the spammers to delete, chances are they would just add all of the addresses to their target lists.").149. See Bernstein, supra note 108, NetGuide, Dec. 1, 1996, at 30.
150. See, e.g., Henry, supra note 11; About Junkbusters Spamoff, Nov. 12, 1996, <http://www.junkbusters.com/ht/en/spam.html>. Similar tactics have been used against telemarketers with varying success by members of Private Citizen Inc., which publishes a directory of consumers who charge for receiving telemarketing calls. See Edward M. Eveld, Getting Hung Up on Telemarketing, Kansas City Star, Oct. 11, 1996, at A1.
151. Even if the advertiser has constructive knowledge of the individual's offer to receive unsolicited messages in exchange for a specified fee, a court would probably hold that the advertiser's act of sending unsolicited messages was not sufficient to constitute acceptance of the offer. Furthermore, the court might require that the fee reasonably reflect the actual costs borne by the individual in receiving the message, which probably will be extremely small. On the other hand, such cases are likely to be brought by in small claims courts, and recipients of unsolicited messages may be able to obtain default judgments based upon a unilateral contract theory.
152. See James Love, Serving Spam, Post No. 3, Dec. 18, 1996, <http://www.hotwired.com/braintennis/96/51/index2a.html>. Some experts simply propose assessing a per-
message surcharge on all Internet users, akin to postage charges. See, e.g., Girard & Wagner, supra note 126. 153. See Bredenberg, supra note 117, at 73.