|Received:||8/19/2004 10:38:38 PM|
|Agency:||Federal Trade Commission|
|Rule:||Definitions, Implementation, and Reporting Requirements Under the CAN-SPAM Act (NPRM)|
Comments:For an all encompasing definition of "spam" in contrast to real commericial emails one must only look at the Supreme Court's decision in Riley v. National Federation of Blind of N.C., Inc. In this case, the court ruled that whenever there is a mixture of commercial and non-commercial speech in a message, then the message is non-commercial for the purposes of First Amendment analysis. Therefore, any email that contains even a portion of non-commercial speech is protected as free speech under the First Amendment. Having this kind of hard and fast definition is incredibly useful because it protects the broadest possible range of noncommercial speech on the Internet. It also prevents legitimate speakers from being dragged through expensive court cases on the question of whether a message was "intended" to be commercial or whether a message was "substantially" commercial, two of the potential tests suggested by some. These sorts of subjective tests give trial lawyers a good payday but they leave ordinary people censoring themselves to avoid breaking the rules. By applying the Riley rule to email, we have a clear way to correctly categorize as "commercial" any of the relevant messages.