[ OUR OPINION ]
UNSOLICITED marketing via e-mail and cellular telephone text messaging has become burdensome, prompting many states to enact bans or controls on advertising over the new technology. Hawaii's Legislature is being asked to replicate a new law in California, but federal legislation is needed to deal with the onslaught of spam. Feds should rein
in stampede of spam
THE ISSUE A Hawaii state legislator has introduced a bill to ban unsolicited commercial marketing to mobile devices.
Unsolicited commercial messages accounted for 8 percent of all e-mail a year and a half ago, rose to 35 percent last July and are expected to surpass the volume of personal messages by the middle of this year. Even the Direct Marketing Association, which had lobbied against anti-spam bills in Congress, reversed its position in October, calling for federal controls.
"Spam must be stopped, and we will take every step necessary to ensure that e-mail is not lost as a marketing channel to the likes of Nigerian widows and unseemly and illegitimate come-ons," said H. Robert Wientzen, head of the organization of 4,700 marketers.
In September, California Gov. Gray Davis signed into law what has been called "Leave Us Alone" legislation that extends a ban on unsolicited faxes to owners of wireless phones, pagers and personal-digital assistants. The law does not include fines or penalties but enables people receiving mobile spam to sue senders for the cost. Similar legislation has been proposed in Hawaii by Rep. Roy Takumi.
Any legislation targeting advertising must be carefully crafted to comply with constitutional safeguards. The federal law prohibiting unsolicited ads via fax machines has been upheld because of the costs -- paper and toner -- incurred by people receiving them. The same rationale could be used to justify a ban on spam received by cell phone, since the user is usually billed for the cost.
However, state courts in Washington and California have struck down anti-spam statutes as interference with interstate commerce. The only cost incurred in receiving e-mail by computer, other than the monthly fee to the Internet service provider, is the time spent deleting it. Users of e-mail also claim First Amendment protection, even for commercial messages.
There is no federal law against spam. The Federal Trade Commission has brought numerous charges against companies engaged in pyramid schemes, credit scams and other frauds by e-mail, but it is limited to prosecuting cases under existing laws against deceptive trade practices.
A coalition of consumer groups is asking the commission to step up its effort to prosecute marketers who conceal their identities, misrepresent the content of e-mail and fail to honor requests to be removed from e-mail lists. The FTC has found that most "unsubscribe" options are fraudulent, instead verifying the recipient's e-mail address and channeling it onto more unwanted lists.
Until adequate laws are enacted, people will have to rely on spam-blocking software or filters used by their Internet service providers to free themselves of the time-consuming task of deleting unsolicited and unwanted e-mail. Unfortunately, those tools are penetrable.
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