Another is the Electronic Mailbox Protection Act of 1997 (S. 875), sponsored by Senator Torricelli (D, N.J.). The bill restricts email harvesting and requires spammers to use valid addresses and honor opt-out requests. Both bills are currently in committee.

The people at CAUCE think that they have a better idea. They believe that the recipient should not have to opt out every time they receive spam, but that spam should be eliminated at its root. They came up with an amendment based on the law that bans unsolicited "junk faxes." It was incorporated into a bill entitled The Netizens Protection Act of 1997 (H.R. 1748), which was introduced by Rep. Christopher Smith (NJ) in May, 1997. It, too, remains in committee.

According to CAUCE, the junk fax law has "... cut the junk fax problem off at the knees... it will do the same for spam" (for a detailed analysis see http://www.cause.org/why.html). The Smith Bill would provide consumers with a "private right of action" against spam, which means that people could sue a spanner for $500 for each piece of unsolicited advertising received. The fine would triple if the court believed the spanner "willfully" or "knowingly" violated the law.

The bill has been endorsed by USA Today, The Seattle Times, The Philadelphia Inquirer, Whole Earth Networks and The Internet Service Providers Consortium.

According to a June 3, 1997 editorial in The Seattle Times, "Both pro-industry and pro-consumer groups support Smith's spam-fighting measure because it protects consumers while preserving individual choice. The bill would allow people to opt in and receive unsolicited advertisements if they give their consent, but it would not put the onus on the individual to stop spam overload."

Here's where the earlier discussion of the First Amendment comes into play. According to Byrne, the Smith Bill "has many advantages," but it may be unconstitutional.

Is it unconstitutional?
"First," Byrne explains, "there must be a substantial government interest at stake which the law attempts to further." In the junk fax law, the government's legitimate stake was in stopping unfair cost shifting from the advertiser to the recipient. So, even though many Internet advocates recognize the cost shifting inherent in spam, "opponents claim there is so little cost shifting involved in email that such a government interest does not exist."

Byrne concedes that since the regulatory scheme has been successful with junk faxes, "there is little reason to think it might not work on spam."

But there are "different constitutional issues facing the Smith Bill," he cautions, and "those would likely doom the Bill in any court proceeding."

Byrne also disfavors the Murkowski Bill, as it forces ISPs to make costly upgrades of their systems.

According to Byrne, the Torricelli Bill may be the most likely of all three to survive a constitutional challenge. "Where the Smith Bill blasts at spam with a shotgun," he writes, "the Toricelli Bill puts a pistol in the hands of every person with an email account."