45 Buffalo L. Rev. 1001 (1997)

Unsolicited Commercial E-Mail and the
Telephone Consumer Protection Act of 1991

David E. Sorkin^*

 
Introduction

      Congress enacted the Telephone Consumer Protection Act of 1991¹ (TCPA) in response to abuses by the telemarketing industry.² The TCPA regulates the use of automatic telephone dialing systems³ and prerecorded calls,⁴ and requires telemarketers to maintain "do-not-call" lists.⁵ The TCPA also prohibits the sending of unsolicited advertisements to telephone facsimile machines⁶--so-called "junk faxes."⁷

      The "junk faxes" Congress had in mind were advertising messages sent to conventional fax machines by means of stan- [1002] dard facsimile protocols.⁸ But the TCPA's definition of "telephone facsimile machine" is extremely broad:

The term "telephone facsimile machine" means equipment which has the capacity (A) to transcribe text or images, or both, from paper into an electronic signal and to transmit that signal over a regular telephone line, or (B) to transcribe text or images (or both) from an electronic signal received over a regular telephone line onto paper.⁹

A personal computer equipped with a standard modem and a printer (or a scanner) would qualify as a telephone facsimile machine under this definition.¹⁰ Many computer users have argued that "junk e-mail" is therefore prohibited by the TCPA,¹¹ and some have even brought lawsuits against e-mail marketers based upon the TCPA.¹²

      The Ninth Circuit has upheld the constitutionality of the TCPA's restrictions on prerecorded calls and unsolicited fax advertisements,¹³ though some commentators have questioned the validity of the distinction between commercial and noncommercial messages.¹⁴ A federal district court in Pennsylvania has [1003] adopted a narrow construction of the term "unsolicited advertisement," holding that it does not include solicitations for employment.¹⁵ To date, however, no court has determined whether the ban on unsolicited fax advertisements also applies to advertisements transmitted by electronic mail.¹⁶

      Section I of this Article describes facsimile machines and electronic mail. Section II discusses construction of the TCPA, including an examination of its language and legislative history. Policy arguments for and against application of the TCPA to electronic mail are considered in Section III. Section IV explores alternative methods of addressing the problems raised by unsolicited commercial e-mail.

I.  Facsimile Machines and Electronic Mail

A.  Facsimile Machines

      A fax machine can transmit a copy of a printed document over an ordinary telephone line in a matter of minutes or seconds. Facsimile technology is over 150 years old, but fax machines became ubiquitous only in the late 1980s.¹⁷ There are [1004] now several million fax machines in use in the United States,¹⁸ and billions of faxes are sent each year.¹⁹

      A conventional fax machine scans a printed document, dials a telephone number that connects it to another fax machine, and transmits the digitally encoded document image to the other machine, which prints out a copy of the document. The encoding is done using one of several industry-standard protocols, most commonly the Group III standard, which requires about thirty seconds to one minute to transmit each page.²⁰

      As fax machines became more common in offices in the late 1980s, creative marketers began sending unsolicited advertisements by fax.²¹ Owners of fax machines complained about the cost and inconvenience of these "junk faxes," and in response many states and eventually Congress imposed restrictions on unsolicited faxes.²² The TCPA now requires marketers to receive [1005] permission from fax machine owners before sending advertising material by fax.²³

B.  Electronic Mail

      An electronic mail ("e-mail") message is a computer file transferred from one computer to another.²⁴ A computer can send and receive e-mail messages and other data over an ordinary telephone line using a modem.²⁵ Electronic mail can also be exchanged among computers on a local area network or between separate networks that are interconnected.²⁶ The Internet, a very large network of computer networks, provides such interconnectivity to millions of computers around the world. An electronic mail message can be transmitted between two computers on the Internet within minutes or seconds, though in rare instances a message may take several hours or even longer to arrive.²⁷

      [1006] Telephones (and fax machines) operate using a dedicated circuit for the duration of each communication, as do some electronic mail networks. On the Internet, however, each e-mail message or other communication is divided into packets of data that are transmitted dynamically along whatever route is deemed most expedient at the time.²⁸

      There are many different protocols for electronic mail messages. Bulletin board systems and local area networks frequently use their own proprietary protocols for internal messages. Electronic mail messages are transmitted over the Internet using the Simple Mail Transfer Protocol (SMTP).²⁹ Commercial applications often use more complex protocols.³⁰

      Various encoding schemes can be used to convert graphic images, sounds, and even video into data that can be transmitted as e-mail. An e-mail message ordinarily originates in digital form, as a text document created in a word processor or e-mail program. However, it is possible to scan a printed document and encode it digitally (either as a graphic image or as plain text, generated using optical character recognition software), in order to transmit it as an e-mail message.

      With the recent rapid expansion of the Internet, e-mail use has increased dramatically. Tens or hundreds of billions of e- [1007] mail messages are transmitted over the Internet each year.³¹ Much of the Internet's growth has occurred in the commercial sector, in part because the Internet provides businesses with a low-cost, highly efficient means of disseminating information. Businesses ranging from multinational corporations to individual entrepreneurs have established "home pages" on the World Wide Web to advertise and support their wares. Companies use electronic discussion forums³² to communicate with groups of people, and electronic mail to communicate with individual customers, suppliers, and stockholders.

      Much of the advertising matter now found on the Internet, particularly that transmitted by electronic mail, is viewed by many Internet users as irrelevant and unwanted. In part this is a result of the history of the Internet as a noncommercial network, and the lingering anti-commercial culture of the Internet.³³ Largely, however, the reaction is based upon the intrusiveness, inconvenience, and expense of receiving unsolicited e-mail advertisements. The economics of the Internet are also of little help: it can be cheaper to send an advertising message everywhere than to target it to a narrow group of prospects,³⁴ and it may be more effective to force an advertising message [1008] into recipients' electronic mailboxes than to hope that they will search out the advertiser's home page on the Web.³⁵ Internet users often find themselves drowning in "junk e-mail" as a consequence,³⁶ and have responded to these unwanted and unsolicited messages in a variety of ways, including threatening to file suit under the TCPA.³⁷

C.  Comparison of Fax and E-Mail

      The primary objections to unsolicited fax advertising are the cost and inconvenience imposed upon the recipient.³⁸ Unsolicited e-mail imposes similar burdens upon the recipient, a point often made by proponents of a ban on such messages. The magnitude of the burden imposed by each unsolicited e-mail message is much less than that imposed by an unsolicited fax. However, it is easier and less expensive to send large numbers of unsolicited advertisements by e-mail than by fax. Unsolicited e-mail therefore may ultimately place a much greater burden upon recipients than unsolicited fax transmissions.

      The sender of a fax ordinarily pays only for the telephone call to the recipient's fax machine. An advertiser can therefore send fax advertisements for a few cents each. The recipient, on the other hand, must supply the paper and ink or toner needed to produce the printed copy of the document. Older and less expensive fax machines require special thermally activated paper or costly thermal transfer ribbons; more expensive machines use laser or inkjet technology to print on plain paper.³⁹ A recent sur- [1009] vey estimates the cost of printing each page on modern consumer-oriented fax machines at about 4 to 12 cents.⁴⁰ The recipient also bears the cost of wear and tear on the receiving fax machine, as well as administrative costs incurred in logging and routing incoming faxes and replenishing paper and ink supplies.⁴¹

      Unlike faxes, electronic mail messages normally are not printed out automatically; therefore, the cost of paper and ink usually is not included in the cost of receiving e-mail. The cost of receiving e-mail via the Internet depends primarily upon the recipient's means of accessing the Internet. Most Internet users with dial-up connections pay either an hourly rate or a flat monthly rate, in addition to any applicable telephone charges.⁴² Employers, educational institutions, and libraries generally pay their Internet providers based upon bandwidth (capacity), and e-mail traffic probably has little effect on bandwidth needs in most instances.⁴³ Another cost component is disk space for storage of incoming e-mail messages on the recipient or provider's [1010] computer system.⁴⁴

      Internet users do bear costs for receiving e-mail messages, although increasingly these costs are borne by the user's online service or Internet provider, and subsequently may be passed along to the individual user in the form of increased subscription or access charges. Users can reduce some but not all of these costs by filtering out unwanted messages or deleting them on sight.⁴⁵ Ultimately, the costs involved in transmitting an e-mail message are divided roughly in half between the sender and the recipient,⁴⁶ although one paying long-distance telephone charges or an hourly access rate likely will bear relatively more of the cost, and a bulk e-mailer likely will bear less.⁴⁷

      [1011] Another objection to unsolicited fax advertising is that it ties up the recipient's fax machine, making it impossible to send or receive other messages while the advertisement is being received.⁴⁸ While each fax may take less than one minute, a machine that receives a large number of fax advertisements each day may be tied up much of the time. Unsolicited e-mail generally does not cause a similar problem, since multiple messages may be received simultaneously. However, the recipient's telephone line may be tied up for the time it takes to download each message unless he or she can delete unread messages without downloading them first.⁴⁹

      Unsolicited faxes do pose a small additional inconvenience to recipients, in that the recipient must decide which faxes merit further attention and which can be discarded unread. This inconvenience is similar to that involved in direct mail advertising: a brief glance at each item is usually sufficient. Phone calls from telemarketers are generally considered more intrusive than faxes or direct mail, because they are interactive and because they must be dealt with immediately.⁵⁰

      Bulk e-mail also can be inconvenient for recipients, especially if the sender uses a vague or misleading subject line to conceal the nature of the message, forcing the recipient to examine the text of the message in order to determine its relevance. The recipient's e-mail software can reduce but not eliminate the time and effort required to sort incoming e-mail messages.⁵¹ On some computer systems, however, each incoming e-mail message causes the user's computer to emit an audible or visual signal, and may even require the user to press one or more keys to acknowledge the message. E-mail advertising can therefore be somewhat more intrusive than faxes or direct mail, but it is almost certainly less so than calls from telemarketers.⁵²

      [1012] Because it is so easy and inexpensive to send bulk e-mail, advertisers are beginning to bombard recipients with such messages. The number of faxes that can be sent by a fax advertiser is limited by the number of telephone lines leased by the advertiser or its fax broadcast service, but no such limitation applies to e-mail. Unsolicited e-mail advertising is likely to be a burden to computer users because of the sheer number of such messages that they receive, rather than simply because of the cost or inconvenience involved in receiving and deleting a single message.

II.  Statutory Construction

A.  Statutory Language

      The TCPA's definition of "telephone facsimile machine" (TFM) is stated in terms of the function that such machines perform rather than the method that they use.⁵³ As discussed above, a conventional fax machine transmits or receives a copy of a printed document over a telephone line using standard fax protocols. An e-mail message can also be a copy of a printed document transmitted or received over a telephone line, using various e-mail and data communication protocols. This confusion is [1013] the basis for most of the arguments that the "junk fax" ban also covers e-mail.

      A literal interpretation of the statutory definition of TFM would include most personal computers in use today. A computer with a modem, a printer, and appropriate software (normally sold bundled with the computer) qualifies as a TFM under § 227(a)(2)(B).⁵⁴ Adding a scanner would qualify the computer under subsection (A), though a scanner is not necessary because the two subsections are stated in the alternative.⁵⁵ Furthermore, many computers include a fax modem, which enables a computer to communicate with fax machines using standard fax protocols as well as with other computers using data communication protocols.⁵⁶ The distinction between computers and conventional fax machines has blurred considerably, and most personal computers seem to fit squarely within the statutory definition of a TFM. The permissive language in the definition is further evidence that Congress intended a broad construction: a conventional fax machine automatically transcribes documents onto paper, while a computer merely "has the capacity" to do so.⁵⁷

      Perhaps the strongest argument against such a broad application of the TCPA is based upon common sense: The ordinary, commonly understood meaning of "telephone facsimile machine" includes neither computers nor electronic mail. Congress almost certainly did not even consider the statute's applicability to e-mail⁵⁸; the breadth of the statutory definition thus seems inadvertent. Nonetheless, absent additional evidence of ambiguity, the fact that the statutory definition differs from common usage [1014] probably does not justify rejecting a literal interpretation.⁵⁹

      As a penal statute,⁶⁰ the TCPA should be construed strictly. Language elsewhere in the TCPA lends indirect support to a narrow construction. Section 227(b)(1)(C) states that it is illegal "to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine."⁶¹ If a computer qualifies as a TFM, then the term "computer" in this provision would be surplusage.⁶² While it would be possible to send unsolicited faxes using a computer equipped with a fax modem but neither a printer nor a scanner (which would thus not qualify as a TFM), such a computer would certainly be included under "other device." This subsection thus ought to be read as an indication that the drafters did not intend the term TFM to include computers.

      Another provision of the TCPA presents further evidence that Congress never intended that the statute be applied to e-mail. Section 227(d) requires that each TFM transmission be marked on at least the first page with the time and date of transmission, the name of the sender, and the sender's telephone number.⁶³ Unlike faxed documents, e-mail messages generally do not have "pages," and it makes less sense to include the sender's telephone number on an e-mail message than on a fax.⁶⁴ Furthermore, when the TCPA was enacted, most fax machines already incorporated a facility for automatically imprinting the identifying information specified by § 227(d)(2).⁶⁵ In- [1015] ternet e-mail messages, however, generally do not include the sender's telephone number, and commonly-used e-mail software does not include a telephone number as a standard data element. Applying the identifying information requirements set forth in § 227(d) to e-mail would therefore render illegal most of the billions of e-mail messages sent each year. On the other hand, if outgoing e-mail is not subject to those requirements, then incoming e-mail ought not be subject to the prohibition on unsolicited advertisements in § 227(b)(1)(C) either.

      Other language in and surrounding the TCPA is also relevant to its construction. The TCPA was specifically directed at abuses of the telephone system.⁶⁷ The preamble states that it is intended "to prohibit certain practices involving the use of telephone equipment," and the word telephone appears in its short title. Its context consists of other statutes that also pertain to the telephone system.⁶⁸

      While a telephone line is inherent to a fax transmission, it is not required for the transmission of e-mail.⁶⁹ The sender of a fax knows the recipient's telephone number and purposely addresses the transmission directly to the recipient's telephone line. The sender of an e-mail message, on the other hand, addresses the message to an e-mail address, and typically does not know whether telephone lines will be used at any point during the transmission of the message (other than at the sender's own [1016] end of the connection).⁷⁰ Unlike conventional fax transmissions, therefore, e-mail is only incidentally related to the telephone system, which casts some doubt upon the TCPA's applicability to e-mail.

B.  Legislative History

      If the language of the TCPA yields contradictory conclusions about its applicability to e-mail, then its legislative history is even less helpful. Although e-mail was widely known by 1991⁷¹ and unsolicited e-mail was already becoming a nuisance,⁷² e-mail is not even mentioned in any of the congressional reports or testimony related to the TCPA. Nor is there any explanation of the statutory definition of "telephone facsimile machine."⁷³ The legislative history does indicate the reasons behind the ban on unsolicited fax advertising, however, and for the most part those reasons are equally applicable to unsolicited e-mail.

      Congress began considering legislation to restrict unsolicited fax advertising in 1989.⁷⁴ The Facsimile Advertising Regulation Act introduced that year would have required telephone companies to maintain lists of customers who objected to receiving un- [1017] solicited fax advertisements, and rendered it unlawful to send unsolicited advertisements to those on such lists.⁷⁵ Several bills concerning telemarketing and fax advertising were introduced over the next two years. The Telephone Advertising Consumer Rights Act would have instructed the Federal Communications Commission to prescribe rules to restrict unsolicited fax advertising.⁷⁶ The version ultimately passed by the Senate would have prohibited unsolicited fax advertising completely.⁷⁷ A similar Senate bill, the Automated Telephone Consumer Protection Act, also contained an outright ban on unsolicited fax advertising.⁷⁸ The ban remained intact in the House version of that bill, by then renamed the Telephone Consumer Protection Act of 1991 (TCPA),⁷⁹ and the Senate concurred in the House amendments.⁸⁰

      The TCPA was enacted in response to a variety of complaints about telemarketing practices. The Congressional findings set forth in the act describe telemarketing calls generally as a nuisance and an invasion of privacy.⁸¹ The findings do not mention problems attributed to unsolicited faxes, such as cost shifting and tieing up telephone lines.⁸² Those two complaints do appear, however, throughout the other documents that comprise the legislative history of the TCPA and related bills.

      [1018] Representative Edward J. Markey, upon introducing the Facsimile Advertising Regulation Act, described the problem as follows:

Unsolicited advertising is beginning to clog FAX lines, restricting the owners' ability to use their machines for the purposes they originally bought them for and generating operating costs the users can't control. Unlike junk mail, which can be discarded, or solicitation phone calls, which can be refused or hung up, junk FAX ties up the recipient's line until it has been received and printed. The recipient's machine is unavailable for business and he or she incurs the high cost for supplies before knowing whether the message is either wanted or needed.⁸³

      Congress clearly was concerned about the cost-shifting effects of unsolicited fax advertising. Representative Markey quoted a Washington Post story that compared unsolicited faxes to "junk mail with the postage due."⁸⁴ Legislators repeatedly complained about the cost of receiving and printing unsolicited faxes, but they were probably more concerned with the fact that costs were being shifted from advertisers to recipients than with the magnitude of those costs.⁸⁵

      [1019] Electronic mail has a similar cost-shifting effect. Although each message normally involves a somewhat lower cost to the recipient than is true of faxes, the cost-shifting effect--i.e., the cost borne by recipients relative to that borne by advertisers--is even higher, because unsolicited advertisements can be sent via e-mail at very low cost to the sender, and advertisers have little or no incentive to reduce the volume of e-mail advertisements.⁸⁶

      The other major area of concern was the inconvenience involved in receiving unsolicited fax advertisements. Such advertisements could tie up a fax machine when its owner had a "legitimate" use for it.⁸⁷ Unlike the cost-shifting complaints, the inconvenience arguments were based primarily on anecdotal evidence, such as accounts of "fax attacks" and similar incidents.⁸⁸

C.  Administrative Interpretation

      The Federal Communications Commission is charged with implementing the regulatory aspects of the TCPA.⁸⁹ The FCC's telemarketing rule paraphrases much of the TCPA; its definition of TFM is identical to the statutory definition.⁹⁰ The FCC has not stated whether a view on the applicability of the TCPA to electronic mail. However, it has ruled that computer-based fax [1020] modems do qualify as TFMs.⁹¹ Because the FCC viewed the statute as "ambiguous" on this question,⁹² however, it probably would not interpret the statute as including computers capable of receiving and printing e-mail message, since this would require an even broader construction of the definition.⁹³

      The language of the TCPA is ambiguous and even contradictory as to its applicability to electronic mail, and neither the legislative history nor administrative interpretations provide a clear answer. Therefore, the policy implications of construing the TCPA to cover e-mail, along with the availability and likely effectiveness of alternative approaches, should be the primary bases for deciding how the statute ought to be interpreted.

III.  Policy Implications

      Interpreting the TCPA to cover unsolicited commercial e-mail would promote several laudable policy objectives. First, like the ban on unsolicited fax advertising, it would prevent marketers from shifting the costs of advertising to consumers. Furthermore, the private right of action created by the TCPA renders the statute self-enforcing; the problem of unsolicited e-mail might be resolved without extensive regulatory intervention.

      Many people are understandably skeptical of governmental efforts to regulate the Internet and online services. The Clipper chip proposal,⁹⁴ the Communications Decency Act,⁹⁵ Stratton [1021] Oakmont, Inc. v. Prodigy Services Co.,⁹⁶ and similar events have produced considerable suspicion regarding government's ability to comprehend the culture and dynamics of computer networks. Indeed, even though the Internet itself traces its origins to a federally funded computer network, it has a long history of informal self-governance without governmental interference.⁹⁷ For these reasons, even many opponents of unsolicited e-mail tend to resist application of the TCPA or other laws to e-mail.⁹⁸

      Another argument against federal regulation of e-mail relates to the government's ability to exercise control over electronic communications. Because the Internet and many online services are international networks, both practical and constitutional constraints may leave a single jurisdiction with little power to affect conduct that occurs or originates beyond its borders.⁹⁹ Bulk e-mailers might well locate abroad to escape the applicability of the TCPA.¹⁰⁰

      [1022] Perhaps the strongest objection to a complete prohibition on unsolicited e-mail advertising, however, is the effect that such a rule would have on legitimate commercial expression. While a ban would probably withstand constitutional scrutiny,¹⁰¹ it might well suppress advertising messages lacking an economically feasible alternative outlet, thereby stifling competition and innovation.¹⁰² Opponents of an outright ban also argue that a market solution is preferable: consumers wishing to be protected from unsolicited e-mail could choose a service provider such as America Online, which prohibits such messages and attempts filter them out, while those who want to receive e-mail advertisements (or who prefer to rely upon their own filtering devices) could choose other providers.¹⁰³

      The debate over unsolicited commercial e-mail may be somewhat slanted by perceptions regarding its content and social value. E-mail advertising has not achieved the legitimacy of traditional direct mail advertising. Sending unsolicited e-mail [1023] and the related practice of posting articles to excessive numbers of Usenet newsgroups are referred to disparagingly as "spamming,"¹⁰⁴ and the most egregious offenders may find their names and other personal information posted for public ridicule and harassment.¹⁰⁵ E-mail advertising is frequently used to promote fraudulent get-rich-quick schemes and other questionable ventures.¹⁰⁶ Unsolicited e-mail advertisements often misrepresent the sender's identity or the source of the recipient's name and e-mail address.¹⁰⁷

      Unsolicited e-mail advertising as it presently exists is highly inefficient, mainly because advertisers bear such a small share of the costs that are involved. E-mail advertisers have no incentive to eliminate duplicate or obsolete addresses from their lists. They also have little incentive to target their marketing efforts.¹⁰⁸ Nonetheless, it may be premature to ban all unsolicited e-mail advertising, if for no other reason than because the Internet is still in a period of rapid development, and a ban might prevent the emergence of superior methods of addressing the problem. Many other approaches have been suggested or are already in use, some of which may be able to achieve the same or better results without the undesirable side effects of a government-imposed ban.

IV.  Alternative Solutions

      While the TCPA as it presently stands may not cover electronic mail, there are many other approaches to the unsolicited e-mail problem. First, however, if an outright ban on unsolicited commercial e-mail is deemed appropriate, the statutory con- [1024] struction problem could be solved simply by amending the TCPA to state explicitly that unsolicited advertisements transmitted via electronic mail are prohibited. Alternatively, a separate federal statute could be enacted to prohibit unsolicited commercial e-mail.¹⁰⁹ Legislation that would attempt this on a state level has already been introduced in at least one state,¹¹⁰ and similar efforts are likely to follow elsewhere.¹¹¹

      One set of responses to the unsolicited e-mail problem is recipient-based: self-help initiatives undertaken by the recipients of unsolicited messages. While reliance upon such efforts leaves the burden upon recipients, it does avoid the risks of overregulation and may maximize individual choice and the ability to adapt to technological advances.

      Another set of responses is regulatory in nature, with standards to be established by either government or the participants themselves (network service providers, advertisers, or both). Self-regulation may well be the best option, but it may be difficult to secure unanimous agreement on what rules should apply to e-mail advertising.¹¹²

A.  Self-Help Efforts

      Many Internet users have attempted to stem the tide of unsolicited commercial e-mail messages by keeping their own e-mail addresses private. E-mail advertisers obtain addresses from a number of places; two of the primary sources seem to be the online directories available on services such as America On- [1025] line, and messages posted to Internet discussion forums, including mailing lists and Usenet newsgroups. By declining to be included in online service directories and omitting or disguising one's e-mail address in publicly posted messages, it may be possible to prevent an address from finding its way onto many advertisers' lists.¹¹³ Many Internet users maintain two or more different addresses in order to reserve one for personal or non-commercial messages;¹¹⁴ some companies use random character strings for addresses instead of surnames in order to prevent outsiders from guessing employees' e-mail addresses.¹¹⁵

      Concealing one's e-mail address, however, is not a satisfactory solution for many Internet users, just as not everyone (even in California) wants to have an unlisted telephone number. Publishing one's fax number is not considered an invitation to advertisers who wish to send unsolicited faxes;¹¹⁶ similarly, publishing an e-mail address should not create a presumption that its owner is willing to bear the cost of unsolicited advertising messages.

      Recipients of unwanted commercial e-mail messages often complain to the sender, asking to be removed from the sender's mailing list.¹¹⁷ Many e-mail advertisers include instructions for such removal in the text of advertising messages that they send.¹¹⁸ Similar "opt-out" systems are used by telemarketers (as required by the TCPA¹¹⁹) and direct mail marketers.¹²⁰ Unfortu- [1026] nately, these removal requests seem to be ignored as often as they are honored,¹²¹ and in some cases such a request may even lead to more rather than fewer unsolicited messages.¹²² And because many e-mail advertisers do not include a valid return address in their messages, it is not always possible to make a removal request.¹²³ Furthermore, the need to respond to each unsolicited advertisement with a separate removal request will become increasingly burdensome as the volume of unsolicited e-mail advertising increases.

      A third recipient-based approach is to filter incoming e-mail, attempting to delete unwanted messages efficiently in order to minimize wasted time and resources.¹²⁴ However, filters are far from perfect, and many unsolicited commercial messages are likely to slip through.¹²⁵ It is difficult to filter out advertisements automatically without risking deletion of other correspondence,¹²⁶ and even the more efficient filters still do not completely prevent network resources from being consumed by unwanted messages.¹²⁷ While filtering technologies undoubtedly will improve over time, it is likely that the volume of advertising messages will increase and e-mail advertisers will become more adept at evading filters. Mandatory labelling of commercial e-mail messages, discussed below, would make effective filtering possible.¹²⁸

      [1027] Finally, an increasing number of Internet users are resorting to retaliation against e-mail advertisers: directing hostile "flames" at the advertiser; flooding the advertiser with e-mail messages, telephone calls, or faxes; and posting information about the advertiser on World Wide Web pages or Internet discussion forums.¹²⁹ Many e-mail advertisers are now very cautious about the contact information they provide as a result of such tactics.¹³⁰ While these tactics may work on occasion, they can be illegal, and they tend to be ineffective at shifting costs back to the advertiser or otherwise deterring unsolicited e-mail marketing.¹³¹ E-mail bombs, for example, place the greatest burdens on the sender's and the advertiser's Internet providers, neither of which may even be aware of the advertiser's activities.¹³² Blacklists and similar attempts to castigate or boycott bulk e-mailers seem to have had little effect.¹³³ Furthermore, some e-mail advertisers have counter-attacked by including names of previous objectors in future advertising messages, subjecting them to retaliation by other incensed Internet users.¹³⁴

B.  Regulatory Approaches

      The ineffectiveness of self-help efforts has led many Internet users to call upon government, network service providers, and advertisers to address the problem of unsolicited commercial e-mail. Several industry groups have already ventured into [1028] the area, including the Direct Marketing Association and the Interactive Services Association, which in 1996 jointly published a set of principles for unsolicited marketing e-mail.¹³⁵ Many Internet service providers have adopted acceptable use policies prohibiting unsolicited e-mail messages and refuse to cooperate with providers that permit such practices.¹³⁶ Because of the decentralized nature of the Internet and the low cost of entering the bulk e-mail market, however, self-regulatory efforts largely have failed to solve the unsolicited e-mail problem, and calls for government action are gaining increasing momentum.

      One relatively uncontroversial requirement would force commercial e-mail messages to identify the sender and include a valid return e-mail address.¹³⁷ Such identification is generally required by existing e-mail protocols, but bulk e-mailers often circumvent this requirement, probably to avoid the retaliatory tactics discussed earlier.¹³⁸ Sender identification would enable recipients to filter out subsequent messages from bulk e-mailers, provide them with a means of requesting removal from mailing lists, and possibly make it reduce the incidence of fraudulent schemes advertised by e-mail. The TCPA requires sender identification for fax transmissions,¹³⁹ and a similar requirement ought to apply to commercial e-mail messages.¹⁴⁰

      [1029] A related rule would mandate that commercial or bulk e-mail messages bear a prominent label, most likely a predefined code at the beginning of the subject line or elsewhere in the message header.¹⁴¹ Labelling messages would enable recipients to filter them out effectively, perhaps even selectively, and would reduce the likelihood that recipients would be misled by advertisements disguised as personal messages. Mandatory labelling is less intrusive than an outright ban: it places fewer restraints upon commercial speech, and it reduces or eliminates the need for Internet service providers and commercial online services to do their own blocking and filtering. However, like the sender identification requirement, it still fails to address the larger issue of bandwidth consumption, since the volume of unsolicited messages transmitted over the Internet is likely to increase even more dramatically with effective labelling and filtering systems.¹⁴²

      Direct marketers have long favored opt-out systems over opt-in systems,¹⁴³ mainly because few consumers take the time to opt either way. Permitting those who do not wish to receive advertisements to opt out is a reasonable solution in the case of direct mail advertising, since the burden imposed upon the recipient is relatively small, and the volume of advertising material is constrained by the costs borne by the advertiser. Telemarketers are also permitted to use an opt-out system, provided they comply with federal regulations pertaining to the maintenance of "do-not-call" lists.¹⁴⁴ Because fax transmissions shift quantifiable costs to the recipient, however, the TCPA pro- [1030] hibits unsolicited fax advertising, effectively mandating an opt-in system.¹⁴⁵ An analogous argument can be made in support of an opt-in system for e-mail advertising.

      E-mail advertisers urge Internet users to accept an opt-out system, promising to keep track of those individuals who request to be removed from mailing lists.¹⁴⁶ Industry groups have also raised the possibility of a universal exclusion list, which would eliminate the need for individuals to submit separate removal requests to each bulk e-mailer.¹⁴⁷ While the proliferation of e-mail advertisers will likely make company-specific exclusion lists relatively worthless, a universal list would probably afford adequate protection to consumers, provided that all (or nearly all) bulk e-mailers participated in the system.¹⁴⁸

      While most of the direct marketing industry is hostile to opt-in systems, some advertisers have used such systems to their advantage. One bulk e-mailer, for example, urges advertisers to build "politically correct" mailing lists comprised of people who have voluntarily signed up to receive e-mail on specific topics.¹⁴⁹ Another possibility would be to permit advertisers to send a single, brief e-mail message inquiring as to the recipient's willingness to receive advertising material, either in general or by subject matter categories. If advertisers were to share their lists of persons who objected to or declined such inquiries (in effect, maintaining an industry-wide opt-out list), the objectors would not be subjected to repeated inquiries.

      An approach likely to be attractive to many Internet users would permit recipients of e-mail advertisements to collect fees from advertisers in exchange for reading their messages. Some Internet users have attempted to institute such a system unilaterally, informing bulk e-mailers that they assess a specified fee [1031] for receiving or "proofreading" each unsolicited commercial message directed to their accounts.¹⁵⁰ Ultimately, most such fees function punitively; even with a very high response rate, few bulk e-mailers would really be willing to pay a fee of up to $500 to each potential customer, and the enforceability of such unilaterally imposed contracts is questionable.¹⁵¹

      A payment system that probably makes more sense in the long term would be one in which advertisers automatically pay recipients a much lower fee for each message, either predetermined or negotiated at the time that the message is transmitted.¹⁵² Future developments in electronic commerce will enable such transactions to be performed efficiently at the level of 10 cents or less, which still is significantly lower than the cost of sending a direct mail piece or making a telemarketing call. Such micropayment schemes are currently in development, but are not yet available to most Internet users.¹⁵³

Conclusion

      Unsolicited electronic mail messages, most of which are commercial in nature, represent a growing problem for users of online services and the Internet. The Telephone Consumer Protection Act's overbroad definition of a "telephone facsimile machine" makes it possible to construe the Act's prohibition on unsolicited fax advertising as also applicable to unsolicited e-mail messages. Faxes and e-mail share many of the same characteristics, and in particular both shift costs onto the recipient of a communication. This cost-shifting effect was the primary basis [1032] for the prohibition on unsolicited fax advertising, and could be used to justify applying the same law to e-mail. However, Congress almost certainly did not anticipate such a construction, and the Federal Communications Commission, which administers the statute, has not expressed no opinion on the matter. It therefore seems unlikely that the TCPA in its present form would be construed to prohibit unsolicited e-mail advertising.

      Nonetheless, efforts to regulate unsolicited e-mail can be expected to gain momentum as the problem grows. Within a year or two several states may have attempted to ban e-mail advertising or require that it be clearly labeled. While Internet service providers and individual Internet users will continue to exert pressure on e-mail advertisers, technological advances and the decentralized nature of the Internet should enable advertisers to circumvent most such efforts. Mandatory labelling in particular seems to be a desirable solution from the perspective of computer users, but labelling also does not adequately address the technical problems posed by unsolicited messages and still would be subject to circumvention by determined advertisers.

      The best solution may be one that combines industry initiatives such as voluntary labelling and universal exclusion lists with technical approaches such as filtering and mail blocking. Individual Internet users could choose from service providers that supply various levels of protection from unsolicited messages, and ideally providers could design e-mail services individually tailored to each customer's preferences. The role to be played by micropayment systems is less clear, though the availability of such systems likely will promote more efficient use of resources and could provide a partial solution to the cost-shifting problem.