Just the Fax, Ma'am

Mark Eckenwiler

Until last year, "junk e-mail" was merely an occasional inconvenience to the average Internet denizen. These days, it's an unwelcome epidemic that shows no signs of slowing. Robert Arkow, a CompuServe subscriber, found two pieces of junk e-mail (from Compuserve) waiting for him in December 1994. But instead of firing off an angry reply to his postmaster or meekly deleting the uninvited solicitations, Arkow took a decidedly different approach: he sued.

Arkow based his lawsuit on a relatively new federal law, the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227. On its face, TCPA addressed a series of annoying telephone practices that emerged in the 1980s; these included recorded telemarketing calls, automated calling machines that refused to terminate a call when the recipient hung up (thereby tying up the line and preventing outgoing calls), and unsolicited commercial advertisements sent by fax. Arkow seized upon this last provision -- the ban on so-called "junk faxes" -- and argued for a novel expansion of the law to cover electronic mail. Arkow's theory draws its appeal from a literal reading of TCPA's statutory language.

Two passages in particular command special attention. First, there is the junk-fax ban itself, which forbids anyone from using "any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine." Read in isolation, this passage seems to offer little relief to the recipient of junk e-mail, as it appears to focus explicitly on fax machines. However, a second passage in the statute seems to broaden TCPA's scope by defining a "telephone facsimile machine" (TFM). As decreed by Congress, a TFM for purposes of the junk fax law is

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.

Read literally, this mouthful of a definition would apply to any computer equipped with a modem and either a printer or scanner. But can the statute be read so literally? According to Robert Bulmash, president and founder of Private Citizen, Inc., an Illinois-based group dedicated to fighting intrusive marketing techniques, the answer is clear. "TCPA clearly covers junk e-mail," says Bulmash, with the result that the unwilling recipients can sue for the $500 minimum damages permitted under the statute. But can the statute really be read so broadly? A closer look strongly suggests that courts may hesitate to construe the statute in a way that covers junk e-mail.

To begin with, the entire thrust of TCPA is to attack abuses of the telephone system, not intrusive marketing in general. One might also ask why, if the statute is meant to apply to junk e-mail, did Congress even bother with the term "telephone facsimile machine"? Wouldn't it have made more sense simply to ban unsolicited "electronic communications," to use a term from another federal statute? Indeed, the Senate Commerce Committee report that accompanied TCPA doesn't mention electronic mail even once. On the contrary, the report refers time and again to "fax machines," indicating that Congress had a very specific type of nuisance in mind.

Even if we ignore Congress's intent and focus strictly on the literal language of TCPA, moreover, there are problems with the argument that the law applies to junk e-mail. Note, for instance, that TCPA creates a ban on using a TFM, computer, or other device to send unsolicited advertising. In other words, Congress drew a clear distinction between a TFM and a "computer" per se. A computer can serve as a fax machine, and there's no reason to think that a computer acting in this manner wouldn't be protected by TCPA. That, however, doesn't make the case for construing the statute to apply to electronic mail.

Looking at TCPA from a different standpoint -- what policy did it try to advance? -- brings a different set of issues into focus. It's clear that Congress based its opposition to junk faxes (and autodialer telemarketing calls to cellular phones, also banned by TCPA) on a simple principle: whatever the First Amendment protects, it's not the right to engage in speech while shifting the costs of that speech onto an unwilling audience. Recent case law bears out that position. In Destination Ventures, Ltd. v. FCC, 46 F.3d 54 (9th Cir. 1995), a junk-fax marketer challenged TCPA on constitutional grounds. According to the plaintiff -- a company that used faxes to advertise training seminars for travel agents -- the First Amendment bars Congress from singling out commercial faxes for disfavored treatment. However, in the view of the Ninth Circuit -- the federal appeals court with jurisdiction over California and other states on the west coast -- that argument doesn't carry much weight.

Specifically, the Ninth Circuit made the following observation: "[U]nsolicited commercial fax solicitations are responsible for the bulk of advertising cost shifting. Thus, banning them is a reasonable means to achieve Congress's goal of reducing cost shifting." Bulmash argues that interpreting TCPA to cover junk e-mail as well as junk faxes makes sense in light of Congress's stated objectives. According to this argument, recipients of junk e-mail incur costs in the form of charges for time spent online reading (and disposing) of it. Likewise, the argument goes, there are costs associated with the disk storage taken up by junk e-mail, and sometimes with the bandwidth used to receive it. (For example, someone fetching e-mail over a long-distance dialup pays for the time it takes to download each message.)

This argument has a certain appeal. It is beyond dispute that junk e-mail is a tremendous nuisance, and these reasons would almost certainly protect a Congressional ban on junk e-mail against constitutional challenge. But the fact remains that in enacting TCPA, Congress showed no legislative intent to address "junk faxes" that aren't faxes in the conventional sense. That fact alone is likely to doom efforts to apply TCPA to junk e-mail. Even well-regarded privacy advocates agree that TCPA was never intended to ban junk e-mail. Robert Gellman, a privacy and information policy consultant with over a decade of experience working as a congressional aide, takes that position. So does Robert Ellis Smith, publisher of the widely respected Privacy Journal -- although Smith also expresses concern that "if marketing ever became a dominant force on the Internet, it would ruin the new medium."

What, then, if TCPA provides no remedy for junk e-mail? Some critics have suggested that a new generation of smart e-mail filters -- able to "score" incoming messages on the basis of their source, header characteristics (such as lengthy cc: lists), etc. -- may render the issue moot. Of course, as I've already suggested, an amended version of the statute would likely be upheld under the reasoning of the Destination Ventures case. But in light of Congress's inability to make TCPA clear in the first place -- and in light of its ignorance about cyberspace in general -- one might well wonder whether a call for legislation is wise. As Smith puts it, "I'd rather not see the government get involved in regulating the Internet."

As for Robert Arkow? The case settled out of court, and Arkow can't disclose the terms. He does say, though, that he still uses CompuServe. They haven't sent him any junk e-mail lately.

A version of this article originally appeared in NetGuide, March 1996. Copyright 1995, 1996 Mark Eckenwiler.

If you found this page interesting, you may also be interested in how I successfully sued a telemarketer in DC Small Claims Court.

P.S. If you came to this page via the link from the pathetic whiners at dotcomeon.com, be advised that this author supports and endorses the MAPS anti-spam system. Any implication to the contrary -- such as that made by dotcomeon.com -- is false.

. . .