Yesterday’s quite suprising decision by a federal district court judge in Oklahoma City adverse to the kick-off of the “do not call” list (with the House voting 412 – 8 to reinstate it this morning) must have caught the attention of those working on the spam problem. If a “do not call” list passed by Congress can’t withstand legal challenge (maybe it just has; we’ll see), then can spam legislation that includes a “do not spam” list and other provisions that restrict commercial speech possibly make it (see what Sen. Schumer’s working on, for instance)? Well, two things. First, it looks like there’s a workaround for the decision of last night, which is that the Congress fixes the way it wrote the law in the first place. Second, the more serious challenge to the “do not call” lists is not on the grounds taken up by the Oklahoma City judge, which turned in essence on a question of authority for the FTC to carry out and enforce the legislation, but rather a challenge on speech, interstate commerce (in the state instances, anyway) or other constitutional grounds. Similar challenges might be leveled at the California law against spam signed into law in California by Gray Davis yesterday. There are evident differences between the two situations: a) telemarketing calls and spam rely on different technologies and have different levels of intrusion; b) much in these challenges could turn on whether it’s a state law or a fedearl law challenged; and c) there is huge relevance to how cleverly the specific legislation is drafted up front.
The spam problem is the most intractable issue on the Net at the moment, I think, right alongside the crisis in digital media. I still think that Prof. Lessig‘s idea, put forth by Cong. Lofgren more or less, to require labeling and offer a $10,000 bounty to those who track down spammers to be paid by the spammer, is the best proposed solution.
The best part of this whole mess are the quotes. Congressman John Dingell: “Unwanted telemarketing calls are less popular than a skunk at a church picnic, and they are more persistent and obnoxious than athlete’s foot.” So what’s spam less popular, and more persistent, than? Actually, don’t answer that.