Enough is enough: Americans get millions of unsolicited phone calls and junk e-mails. Congress is acting to limit them. But marketers say they have a free-speech right to make their pitches.

In Washington, D.C., 18-year-old Harry Stein had his aha! moment on Internet spam--the unsolicited junk e-mail that clogs millions of in-boxes across America--when the family returned from a weeklong vacation. The Stein e-mail account was buried in over 100 e-mail messages, the vast majority of them spam.

"It took almost an hour and a half to go through it," says Stein, who is starting his freshman year at the University of Wisconsin this fall. "We were taking turns deleting it. One of us would come in and do 30, and then another would do another 50." The family quickly bought a service thai helps filter Internet spare from their e-mail accounts.

Halfway across the U.S. in St. Louis, Nikki Elwood, 16, says Internet spain is an annoyance, but even more frustrating are the calls from telemarketers bombarding her house with sales pitches. The calls come throughout the day and even into the night. "We've gotten a couple at 2 a.m.," she says. "We've gotten to where we just hang up."

50 PERCENT AND GROWING

Modern communications in the form of the phone and the Interenet have turned what were once the infrequent knocks of traveling salespeople on the doors of American homes into daily home invasions. Telemarketers make about 65 million phone calls a day, and the spam onslaught is worse: By the end of 2003, 7.1 trillion spare messages will have been sent, according to Brightmail, a spam detection company. That's up from 3.6 trillion in 2002. By last July, 50 percent of e-mail was spam.

The constant assault has put the U.S. Congress in the position of refereeing a classic battle between voters angry at the sales pitches and marketers who stand to lose billions if their entryway into American homes is slammed shut. For years marketing groups used lobbying clout to stall congressional bills aimed at their operations. But the mood in Congress shifted this year--some say because members themselves are fed up with the hard sell. Congress limited telemarketing calls in a bill President George W. Bush signed into law in June. The bill created a national do-not-call list. This fall, the House of Representatives and the Senate are expected to take up legislation aimed at spam.

INVASION OF PRIVACY OR FREE SPEECH?

"We have to deal with the problem," says U.S. Senator Conrad Burns, Republican of Montana, a sponsor of one version of the antispam legislation before Congress. "Doing nothing is not an option."

But the outcome of the battle over unsolicited marketing is far from certain. Groups representing the $100-billion-a-year telemarketing industry have already gone to court challenging the new antitelemarketing law. They argue that it restricts their right to freedom of speech under the Constitution's First Amendment. Because the telemarketing law allows political fundraising calls, telemarketers also say it violates the 14th Amendment's equal protection clause, which holds that laws must be applied in the same way for everyone.

But millions of Americans see the marketing calls as a violation of what they hold to be a basic right to privacy--in other words, the right to be left alone. The privacy right isn't guaranteed in a specific amendment, but in the landmark 1965 case Griswold v. Connecticut, the Supreme Court ruled that the Fourth Amendment, which bans illegal searches and seizures, along with several other amendments, implies such a right.

The nation's new telemarketing law was an immediate hit. In its first three weeks of registering phone numbers, nearly 30 million people signed up for the list by calling a 1-800 number or visiting a government Website (www.donotcall.gov). Federal officials say they expect 60 million people will register by next summer. Beginning October 1, telemarketers could be heavily fined for calling numbers on the list.

AN UPHILL BATTLE?

But while grateful for the new law, opponents of telemarketing say the legislation was watered down under industry pressure and may be ineffective.

"There are so many loopholes you can drive a boiler room through it," says Robert V. Arkow, president of Californians Against Telephone Solicitation. (Boiler room is the slang term used to describe shady telemarketing operations that are sometimes run out of basements.) The new law, for instance, allows telemarketers within a state to keep making calls, unless that state's own laws forbid them.

Loopholes could become a problem in the antispam legislation the Congress will likely consider this fall. Opponents have already targeted a bill proposed by two powerful Republicans, Billy Tauzin of Louisiana, chairman of the Energy and Commerce Committee, and F. James Sensenbrenner Jr. of Wisconsin, chairman of the Judiciary Committee. Their bill would normally be a frontrunner, in order to push favored bills through, committee chairs can use their powers to determine when legislation is scheduled for hearings and votes.

But opponents of the antispam bill say lobbyists from the credit card industry and other factions have used their influence with lawmakers to make certain the new law only outlaws marketing e-mail whose "primary purpose" is to promote a product. By pretending that selling is only the secondary purpose of their e-mails, marketers could skirt the law, opponents of the bill say.

FINDING THE LOOPHOLES

Major Internet service providers have sued spammers trying to stop the flood of messages, and spent millions of dollars on software that attempts to filter out spam.

Yet the flood of spare shows little sign of abating, with the number of messages doubling in the last year. Fertis Research, a communications consulting company, estimates the cost of spam in lost time for workers and business spending at $10 billion a year. If spare keeps growing, some fear it could make e-mail unworkable as a communications tool.

Most spammers hide their identities and don't come forward to defend their practices. But one e-mail marketer, who says she runs a legitimate business that helps people with bad credit, says spare is getting a bad rap. With e-mail, she says she reaches millions of people who benefit from her expertise.

"These antispammers should get a life," says Alyx Sachs, a California-based marketer. "Do their fingers hurt too much from pressing the delete key? How much time does that really take from their day?"

But many computer users say spam is more than a minor inconvenience. "Every single day, two or three times a day, I'm erasing multiple messages that I have to spend at least a few seconds glancing at to make sure it's not something I need," says Brian Basham, a real-estate broker in downtown Denver. "By the end of the year, who knows how many hours I spent looking at this stupid stuff to figure out what's junk?"

... And Growing
An increasing percent of
Internet e-mail is spam.

Spam as a Percent of E-mail

SEPT. 2001     8%
SEPT. 2002    38%
JULY 2002 *   50%

* Most recent month for which data is available.

Source: Brightmail

LESSON PLANS

DISCUSSION QUESTIONS

* Some argue that commercial speech--ads--should not enjoy the same protection as other speech. Do you agree?

* Alyx Sachs says unwanted spare is a minor inconvenience to recipients. What evidence supports--and rebuts--her argument?

TEACHING OBJECTIVES

To help students understand opposition to spam--the unsolicited, usually commercial, e-mail sent to large numbers of people--and the plans to clamp down on the deluge of unwanted messages.

CLASSROOM STRATEGIES

BEFORE READING: Make copies of the First Amendment and distribute to students. Ask them to pay particular attention to the free-speech clause.

FREE-SPEECH DEBATE: After students read the article, break them into two groups. One group should defend spamming and telemarketing as free-speech rights. The other should argue that these do not deserve to be protected under the First Amendment's free-speech clause. Some questions for both sides: Why is there no similar outcry against TV, radio, and print media ads? Are spam and telemarketing different from the "junk mail" that clogs mailboxes?

SPAM TAX DEBATE: Tell students that some antispam advocates propose that e-mails be taxed--a penny, or even less--for each message sent. The argument is that the tax would be of little concern to ordinary consumers but would force spammers to curtail their mailings, since they send tens of millions of such e-mails each year. Would such a tax discriminate against advertisers? Would it impinge on advertiser's free-speech fights?

ROLE PLAY: Students might write a brief law designed to ban or restrict spamming and telemarketing. How would they circumvent the argument that restrictions violate First Amendment rights? Fourth Amendment implied privacy protection? Fourteenth Amendment equal protection? Should spamming for political contributions be banned? What about solicitations for legitimate charities?

SPAM DETECTIVE: Have students encountered spare while working online? Assign them to do some Internet research on any curriculum-related topic. Have them record the number and types of spam that interrupted their work. Compile their responses and post them in class on a bulletin board.

WEB WATCH: To see graphs showing numbers and types of spam attacks between 2002 and 2003, go to www.Brightmail.com/spamstats.html#spam_attacks.

Upfront QUIZ 2

DIRECTIONS: Circle the letter next to the correct answer.

1. Spammers and telemarketers--who solicit business over the phone--say laws curtailing their activities violate their

a right to free speech.

b right to earn a living.

c right of association.

d contracts with telephone companies.

2. Critics say the law regulating telemarketing has a loophole in that it permits

a business calls during evening hours.

b private citizens to order merchandise over the phone.

c pollsters to research public opinion over the phone.

d political fund-raising calls.

3. Opponents of telemarketing find support for their cause in the Fourth Amendment, which implies

a government's right to regulate business.

b a right to privacy.

c that many business solicitations are illegal.

d government's authority to tax business communications.

4. Bending to pressure from telemarketers, the federal anti-telemarketing law only bars calls

a in the morning.

b in the evening.

c between states.

d to people below age 21.

5. Critics say proposed anti-spam laws also have loopholes. One proposed law would only ban spam

a whose primary purpose was to promote a product.

b directed at children.

c that was sexually explicit.

d that promoted racism or ethnic hatred.

6. What is the estimated economic impact of spam?

a Internet sales have greatly stimulated the economy.

b Rising spam earnings have revived the stock market.

c Spam costs an estimated $10 billion a year in lost time for individuals and businesses.

d Spare diverts consumers from high-quality goods.

ANSWER KEY

1. (a) right to free speech.

2. (d) political fund-raising calls.

3. (b) a right to privacy.

4. (c) between states.

5. (a) whose primary purpose was to promote a product.

6. (c) Spare costs an estimated $10 billion a year in lost time for individuals and businesses.