Applying the U.S. Postal Service statutes to e-mail transmissions.
In the quest for newer, faster and more efficient means of communicating, electronic media have moved to the forefront of interpersonal and professional communication. As denizens of the computer age know, the computer is taking a primary role in the communications field through the use of electronic mail.(1) Electronic mail or "e-mail" allows us to communicate instantly. Although the United States Postal Service (hereinafter "the Postal Service") has stayed abreast of technological advancements, ordinary mail is being eclipsed by electronic communications and even by fax machines. The Postal Service delivered 107 billion pieces of first class mail in 1998. This figure pales when contrasted with the nearly 4 trillion e-mail messages received by U.S. residents that same year.(2) Computer technology permits e-mail transmission to far surpass the speed at which the Postal Service can deliver mail.
The purpose of this Note is to apply existing federal laws regarding ordinary mail to electronic mail communication.(3) As technology advances, the use of older, slower means of communication will be phased out and electronic mail will take on greater import and value. A strong argument can be made that the Postal Service will go the way of the "Pony Express,"(4) as more and more people get on the information superhighway and communicate electronically.
In many ways the development of the Postal Service and the development of the Internet are analogous. Both were created by the United States government and both quickly outgrew their creators' original intentions and came to serve the citizenry. This Note traces the progressions in written communications in order to analyze society's changing communication needs. Sections II and III examine the history and evolution of the Postal Service and the Internet. Through analyzing the histories of the Postal Service and the Internet, like patterns are revealed that assist a comparative analysis.
On-line service providers attempt to provide their subscribers with the same security, privacy and quiet enjoyment that the United States Mail does. This Note examines attempts by one popular on-line service provider to protect its customers. Section IV discusses the laws that protect Postal Service mail and how they should be applied to e-mail communications in the near future. Finally, this Note will discuss the Postal Service's attempts to reconcile e-mail and "snail mail."(5)
II. HISTORY OF THE UNITED STATES POSTAL SERVICE
The origins of the Postal Service date back to 1639, when Richard Fairbanks' Boston tavern was named a repository for overseas mail.(6) As the nation grew, the Postal Service expanded in response to the increased demand for its services.(7) Essentially, this meant harnessing technological innovations in transportation.(8) For instance, in 1862 the Postal Service instituted railway mail service in order to more quickly serve the public.(9)
Recognizing that Postal Service abuses could quickly become a national problem, Congress enacted the Mail Fraud Statutes in 1872 and established the position of Chief Post Office Inspector.(10) This legislation is of particular significance because it marks the first time that Congress criminalized the misuse of the Postal Service.
In the twentieth century, the Postal Service continued to rely on new technologies to deliver mail. The first sanctioned carriage of mail by airplane took place in 1911 when airplanes were used to deliver mail between Garden City and Mineola, New York.(11) As air travel became more dependable, the Postal Service increased its reliance on airplanes. On May 15, 1918, airmail was officially made part of the Postal Service with a mail delivery between New York and Washington D.C.(12) By 1920 regular mail routes were established between select cities across the country.(13) That same year, the first transcontinental airmail flight took place,(14) and four years later, the Postal Service made transcontinental airmail one of its regular services offered to the public.(15) Airmail began to cross the Pacific Ocean in 1935. Regular service across the Atlantic followed four years later.(16)
In the 1960' s, the advent of computers began to affect the Postal Service's daily operations. In 1965, the Postal Service began to experiment with an optical scanner that relied on a computer.(17) This scanner sorted mail automatically, without human readers.(18)
In 1980, technological advances led the Postal Service to attempt a service similar to e-mail.(19) That year the Postal Service introduced INTELPOST (International Electronic Post), a high-speed international electronic message service that was far more limited than modern e-mail.(20) Two years later, complete automation of the Postal Service began with the installation of optical character readers.(21) This system allowed computers to read addresses on packages and envelopes.(22) That game year the Postal Service instituted E-COM (Electronic Computer-Originated Mail), an electronic message service that included hard copy delivery.(23) The most recent technological development implemented by the Postal Service is the remote bar-coding system, begun in 1992.(24) Despite the Postal Service's remarkable history of applying technology to enhance its delivery capabilities, the speed of mail delivery is severely hampered by its physical mass. This is a problem that does not encumber electronic mail.
III. HISTORICAL DEVELOPMENT OF THE INTERNET AND E-MAIL
A. Origins of the Internet
The Internet was the result of the United States military's perceived need to protect the nation during the Cold War.(25) In the 1960s, when technological innovation in the area of national security was imperative,(26) the United States Air Force commissioned a study to determine the feasibility of using a computer network to control missile use and to help defend against an attack.(27) The Internet's development was considered critical to the nation's ability to survive an atomic war.(28) With military sponsorship, this computer network became a fully functional means of transmitting data by 1968.(29)
The biggest problem with the early computers' designs was that engineers failed to consider the possibility that these computers could someday be networked.(30) Consequently, transferring programs from one mainframe to another required extensive modifications to each program.(31) To combat these problems, the Advanced Research Projects Agency (ARPA), a Defense Department agency, relied on research from scientists from the RAND Corporation, MIT, and other scientific laboratories, to develop a system named "ARPAnet."(32) ARPAnet used cutting edge technologies to allow its users on one computer to run a program on any other computer on the network.(33) In 1968, ARPAnet scientists linked dissimilar computers in different geographical areas by using telephone lines.(34) By October 1971, experimenters were able access each others' computers at will.(35)
Within ten years of these first experiments, computers around the world were networked and communicating with one another using the same rules, or "protocols,"(36) developed in 1968 by ARPAnet scientists.(37) Not until the mid 1980s, when the National Science Foundation (NSF) took control of ARPAnet, did the network's connections expand beyond government computers in laboratories or agencies and a few select universities.(38) The NSF envisioned a network of "backbone" supercomputer centers that would connect with other networks serving an extensive number of different research facilities and government agencies.(39) By the 1980s, NSF's vision was fulfilled when some of the systems on NSFnet went public.(40) This allowed anyone with a computer and a modern to access these networks and communicate with others worldwide.(41) The NSFnet, now known as the Internet, enjoys an unprecedented user growth rate.(42) Currently, the Internet's monthly expansion of new "host" computers -- those that operate as storage sites for traffic on the Internet -- is estimated to be between ten to fifteen percent.(43) Furthermore, the growth rate of traffic on the major routes of the Internet "exceeds twenty-five percent each month."(44) In 1992, the Internet had an estimated 5 to 10 million users.(45) During the three years prior to 1992, the number of computers connecting to the Internet doubled every eight to fifteen months.(46) Because of this enormous growth rate, one can reasonably project that, by early in the next century, there will be more than one billion computers connected to the Internet.(47)
Throughout the Internet's development and growth, the protocols have remained unchanged. These are "(1) telnet, the remote login to another, or dispersed, computer; (2) file transfer protocol, or FTP, the transfer of actual computer files among networked computers; and (3) electronic mail, or e-mail."(48)
Telnet allows a user to connect his or her computer to a computer system at a different location and enables the user to control the remote system from his or her computer at home.(49) A File Transfer Protocol (FTP) user is essentially a visitor in another computer's hard drive.(50) The operator of the FTP site has stored files on her computer's hard drive.(51) By connecting a computer to the Internet by modem, the FTP operator has opened her hard drive to Internet users.(52) E-mail, on the other hand, allows a user to individually connect to the Internet.(53) "The primary difference between e-mail and FTP is that an e-mail message, while being more interactive, is less intrusive upon someone else's hard drive. E-mail is sent; in FTP, the user must retrieve the information."(54)
B. The Growth of E-mail
E-mail is "[a] document created or received on an electronic mail system including brief notes, more formal or substantive narrative documents, and any attachments, such as word processing and other electronic documents which (sic) may be transmitted with the message."(55) The purpose of an electronic-mail system is to "create, receive, and transmit messages and other documents."(56) E-mail is the successor to the telex as a means of two party communication.(57) Many believe that e-mail is the fastest growing means of electronic communication used in business.(58) Already, most large companies, law firms, and government agencies employ e-mail as part of their daily communications between employees and clients.(59)
Statistics reveal e-mail's prevalence in today's society. Currently there are nearly 20 million users of electronic mail in the United States, at least half of whom have been using e-mail since 1990.(60) By the year 2000, experts anticipate that the number of e-mail users nationwide will double.(61) Further estimates suggest that these 40 million e-mail users will be sending 60 billion e-mails annually.(62) Most recently, Time Magazine reported that U.S. residents received an estimated 4 trillion e-mail messages in 1998.(63) Moreover, an estimated three million employees of United States companies rely on e-mail to "telecommute," using a computer and a modern to either work from home or from another remote location.(64)
The sudden increase in e-mail has raised concerns over the confidentiality of its contents. For instance, because of e-mail's distinctive qualities, there is some debate as to how e-mail transmissions should be treated in evidentiary proceedings. Some commentators have analogized the admissibility of e-mail to telephone conversations;(65) others compare e-mail to written correspondence.(66) Some on-line providers have attempted to respond to the problems that arise, but as the use of e-mail becomes more commonplace, there will be a greater need to resolve these and other issues.
IV. INTERNET SERVICE PROVIDERS AND THEIR ROLE IN CUSTOMER SERVICE
Private entities that provide users with access to the Internet, such as America Online and the Microsoft Network, "operate as electronic post offices ... allow[ing] [people] to communicate with one another via electronic mail."(67) America Online, Inc. (hereinafter "AOL") is the largest Internet service provider,(68) and its regulations are typical of how Internet service providers attempt to regulate e-mail transmissions.(69) For a consumer to sign up with AOL, he or she must agree to follow AOL's "Terms of Service Agreement" and its operating rules called the "Rules of the Road."(70) This is not unusual. As consumers, we are required to enter into various contracts when purchasing or using a service, for instance, with credit card companies, health clubs, and long distance telephone carriers. However, the AOL contract is an attempt at self regulation designed to give customers a certain measure of security, privacy and quiet enjoyment. The "Rules of the Road" benefit AOL's customers as much as AOL.
The Terms of Service Agreement (hereinafter "AOL Agreement" or "Agreement") outlines the obligations that AOL demands of its subscribers.(71) Among the requirements is that a subscriber may not use his or her screen name in violation of the AOL Agreement or in any way that AOL deems inappropriate.(72) For example, sending, or causing to be sent, mass e-mail solicitations is a violation of the AOL Agreement.(73)
The AOL Agreement also governs subscribers' conduct and communication. This restricts, among other things, the content of e-mail transmissions.(74) The AOL Agreement also forbids subscribers from "post[ing] or transmit[ting], or caus[ing] to be posted or transmitted, chain letters or pyramid schemes."(75) Moreover, a subscriber is also forbidden from posting or transmitting, or causing "to be posted or transmitted, any unsolicited advertising, promotional materials, or other forms of solicitation to other Members, individuals or entities, except in those areas that are expressly designated for such a purpose (e.g., the classified areas), or collect or harvest screen names of other Members, without permission...."(76)
The AOL Agreement further states that AOL reserves the right to refuse to transmit what it terms "offensive e-mail communication."(77) This includes mass e-mail solicitations known as "spam mail"(78) or "junk e-mail."(79) Some have made "spamming" part of their business. For example, in April 1994, the Phoenix, Arizona law firm of Canter & Siegel posted an advertisement to thousands of Internet newsgroups around the world.(80) The law firm was immediately reprimanded by thousands of Internet users who considered the advertisement a violation of "netiquette."(81) Some enterprising people have even made "spamming" into a business venture.(82)
AOL's prohibition of these e-mails is a valuable service to its subscribers. Sorting through and deleting unwanted e-mails, solicitations, and commercial advertisements without deleting crucial messages can be a time consuming process. However, AOL's efforts are insufficient, since AOL cannot penalize Internet users who do not subscribe to their Internet service. Consequently, other Internet users infringe upon AOL's users' enjoyment with impunity. To enhance everyone's use of e-mail, a uniform set of laws needs to be applied to e-mail transmissions for all users to follow.
V. EXISTING UNITED STATES POSTAL SERVICE STATUTES AND HOW THEY CAN BE APPLIED TO THE INTERNET FOR THE PURPOSE OF REGULATING E-MAIL
The Postal Service, because of its size, is a heavily regulated entity.(83) Title 39 of the United States Code is entirely devoted to laws that regulate the public's use of the Postal Service.(84) Furthermore, Title 18 of the United States Code contains a section devoted to criminal penalties for misuse of the Postal Service.(85)
A. Criminal Penalties for the Sending of "Nonmailable" Matter
Part IV of the Postal Reorganization Act of 1970 (hereinafter "Postal Act"), determines what is nonmailable matter.(86) Nonmailable matter is "[m]atter the deposit of which in the mails is punishable under section 1302, 1341, 1342, 1461, 1463, 1714,(87) 1715,(88) 1717, 1718,(89) or 1738 of title 18. ..."(90) To discuss how these statutes should apply to e-mail transmissions, they must be examined individually.
Congress criminalized "[m]ailing lottery tickets or related matter."(91) Specifically, 18 U.S.C. [sections] 1302 states:
[w]hoever knowingly deposits in the mail, or sends or delivers by mail: Any letter, package, postal card, or circular concerning any lottery, gift enterprise, or similar scheme offering prizes dependent in whole or in part upon lot or chance[,]... [a]ny newspaper, circular, pamphlet, or publication of any kind containing any advertisement of any lottery, gift enterprise, or scheme of any kind offering prizes dependent in whole or in part upon chance.... [s]hall be fined under this title or imprisoned not more than two years, or both; and for any subsequent offense shall be imprisoned not more than five years.(92)
The purpose of this statute is to protect the potential receiver of such material from the demoralizing or corrupting influence of printed or written matter circulated through the mails.(93)
This statute could also be applied to e-mail transmissions for the same purpose. Consider the case against on-line casinos, which are recent additions to the Internet's panoply of vices. With their emerging popularity,(94) the likelihood increases that advertising for these Internet sites will be sent via e-mail transmissions. On-line casinos allow a user to enter a web site's virtual casino and play games of chance, similar to those played in Atlantic City or Las Vegas, with real money. This gambling takes place in the jurisdictional "no man's land" of the Internet in order to avoid the limitations that the federal and state governments place on gaming licenses. Moreover, these Internet sites are usually registered outside the United States, where federal and state gaming restrictions do not apply.(95) Yet, 18 U.S.C. section 1302 could be applied to e-mail transmissions and thus protect individuals from corrupting on-line advertisements and consumer exploitation. Certainly the need for such protection is at least as great as the need for protection against advertisements sent through the U.S. Mail.
Section 1341 criminalizes mail fraud under the title, "Frauds and swindles."(96) The statute states:
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises. ... places in any post office or authorized depository for mail matter, any matter or thing ... [regarding the scheme] to be sent or delivered by the Postal Service. ... shall be fined under this title or imprisoned not more than five years, or both. If the violation affects a financial institution, such person shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.(97)
The purpose of this section is to prevent the Postal Service from furthering schemes to defraud the public.(98)
The rationale behind applying this statute to e-mail transmissions is similar if not identical. Criminalizing these types of e-mail transmissions will protect Internet users from becoming victims of cyber-schemes offering chances to get rich quick or make money without doing any work.(99) AOL has attempted to combat this by refusing to transmit e-mail that furthers a chain letter or pyramid scheme.(100) However laudable, this effort is inadequate. Enforcing criminal penalties against the perpetrators of frauds and swindles is the sole method of dealing with this kind of illegality, and the only solution to frauds effected through the Internet.
Section 1342, which is read with section 1341, further penalizes any person who commits a fraud or swindle while using a "fictitious, false, or assumed title, name, or address...."(101) Section 1342 could be modified or adopted for the same reason as section 1341; to further protect the on-line user from fraudulent schemes.
Mailing obscene material or crime-inciting matter is also subject to criminal punishment.(102) Anyone caught mailing any material that is found to be "obscene, lewd, lascivious, indecent, filthy or vile, ... shall be fined under this title or imprisoned not more than five years, or both, for the first such offense, and shall be fined ... or imprisoned not more than ten years, or both, for each such offense thereafter."(103) The purpose of this section is not to interfere with the rights of the individual sender, but to refuse facilities for the distribution of matter deemed harmful to the public morals.(104) This statute is a prime candidate for application to the Internet. A deluge of litigation is arising out of the use of the Internet for the purposes of obtaining child pornography and other types of obscene materials.(105) Applying this statute to e-mail transmissions not only has the effect of limiting the transmission of child pornography,(106) but would also criminalize sending bomb recipes and computer viruses to other e-mail users.
Section 1463 designates items as nonmailable when "indecent, lewd, lascivious, or obscene" characters or language are placed upon "the envelope or outside cover or wrapper....(107) This renders the material no different than the material described in section 1461. The only foreseeable way in which this can apply to e-mail transmissions is if the "subject"(108) of the e-mail has language that would violate this section. Sections 1461 and 1463 would not interfere with an adult's right to visit pornographic or obscene sites by using telnet or FTP.
Congress has also criminalized the mailing of injurious articles.(109) 18 U.S.C. section 1716 defines any materials containing poison as nonmailable material.(110) This also includes "articles, compositions, or material which may kill or injure another...."(111) This statute can easily be analogized to e-mail transmissions. Material that can injure or kill another does not need to have physical components. Plans or blueprints to make a bomb or gaseous poison can and should be considered materials that could injure or kill.(112) Most Internet users know that such information is readily available on the Internet. Applying this statute to e-mail transmissions enhances the government's ability to effectively prosecute and punish persons conspiring to hurt others.(113)
Congress recognizes other writings as nonmailable, and has consequently criminalized using the Postal Service to send them.(114) Section 1717 of Title 18 states that "[e]very letter, writing, circular, postal card, picture, print, engraving, photograph, newspaper, pamphlet, book, or other publication matter or thing, ... which contains any matter advocating or urging treason, insurrection, or forcible resistance to any law of the United States is nonmailable...."(115) Punishment for violating this statute is a fine or up to ten years imprisonment, or both.(116) Congress' purpose for enacting section 1717 was to protect the United States from acts of sedition. There have been constitutional challenges claiming that this statute violates the First Amendment. However the statute has been found to be constitutional.(117)
Section 1717 can also be modified to limit e-mail transmissions and to protect the United States from acts of sedition. With the growth of e-mail in both the government and private sectors, an important government secret could easily be transmitted into enemy hands. For example, an employee of a United States weapons manufacturer could conceivably gain access to sensitive blueprints of government missiles or planes and attempt to sell them to enemies of the State over the Internet while sitting at his desk at work. Application of this statute to e-mail transmissions will result in additional penalties for persons attempting seditious acts. This would also deter persons from committing acts of treason. Given the international flavor of the Internet, the need for protecting our shores is perhaps even greater in the electronic context.
B. Civil Liabilities for the Misuse of the Postal Service
The U.S. Code does not limit itself to criminal penalties for the misuse of the Postal Service; civil liabilities may be incurred as well. This may result in situations where individuals are annoyed or harassed by another's use of the mails.
For example, Chapter 30--Nonmailable Matter,(118) provides that an individual may require that a mailer refrain from sending further mailings to him and to further remove his name from its mailing lists.(119) Under this section of the Postal Act, entitled "Prohibition of pandering advertisements,"(120) an individual has the right to shield himself from advertisements that he "believes to be erotically arousing or sexually provocative...."(121) Upon receiving notice from the addressee, the Postal Service is required to issue an Order, "if requested by the addressee, ... directing the sender and his agents or assigns to refrain from further mailings to the named addressee."(122) Because of this Order, the Postal Service further prohibits the sender and his agents from selling, renting, or exchanging mailing lists that bear the name of the designated addressee.(123)
The Supreme Court has held that the Postal Act is constitutional.(124) The Court determined that Congress intended the law to protect citizens' privacy, and further noted that any constitutional questions that could arise from vesting such power in a governmental official were precluded by the right to a full heating offered to the sender.(125) The Court also held that in addition to pandering advertisements, all further mailing by the sender to the addressee are prohibited after an Order has been issued by the Postmaster General.(126)
A user of on-line services should be afforded the same abilities and privacy protection. Although AOL attempts to protect its customers from e-mail solicitations,(127) the corporation does not have the power to do anything more; such as prosecuting offenders. Applying this section of the Code to e-mail transmissions instills in consumers the ability to protect themselves from unwanted intrusion in the quiet enjoyment of their Internet service.
Another statute that should be applied to e-mail transmissions concerns "[m]ail bearing a fictitious name or address."(128) 39 U.S.C. section 3003 allows the Postal Service to "withhold mail so addressed from delivery; and require the party claiming the mail to furnish proof to [the Postal Service] of the claimant's identity and right to receive the mail."(129)
This section protects the addressee from having his mail taken and opened by someone else. For this reason, e-mail should also be afforded the same right to privacy. Accomplishing this goal would be relatively simple. Anyone with an e-mail account could be given an encrypted password that would need to be entered before e-mail could be opened and read. This would protect the addressee of the e-mail from others who want to read their mail. Internet service providers offer something similar in that you must have a password to access the service. However, they still are aware of what your password is, and would be able to read your mail if they so choose. Applying a separate password that is not assigned by an Internet service provider would create a greater sense of security for persons using e-mail.
C. The Problem of Jurisdiction on the Internet
One could argue that the United States lacks the jurisdiction required to apply these statutes to the Internet because the Internet itself is international. In fact, no case has arisen in a criminal context regarding the Internet where the alleged perpetrator conducted her activities "outside" U.S. borders. However, there are cases involving this jurisdictional issue in civil cases, where courts have decided both ways.
For example, in Zippo Manufacturing Co. v. Zippo Dot Com, Inc.,(130) a district court held that Zippo Dot Com, Inc. purposely availed itself of doing business in Pennsylvania and therefore subjected itself to jurisdiction in that state.(131) The court found that if an entity enters into contracts and continuously transmits data via the Internet, personal jurisdiction is proper.(132)
The district court in Zippo is not the only one to have found a basis to exercise jurisdiction via the Internet. In Telco Communications v. An Apple a Day,(133) a district court held that non-resident defendants were subject to personal jurisdiction in Virginia for posting allegedly defamatory statements on an Internet site.(134)
However, not all courts have been as willing to exercise personal jurisdiction based upon Internet activity. For example, in Bensusan Restaurant Corp. v. King,(135) the Second Circuit Court of Appeals refused to exercise personal jurisdiction in New York based solely on the basis that the defendant had a Web site that could be accessed by people in New York.(136) The court held that in order to exercise personal jurisdiction, the defendant must have expected or reasonably expected that the tortious act he committed would have consequences in the state in which jurisdiction is sought and "derive substantial revenue from interstate commerce."(137)
As those cases demonstrate, personal jurisdiction through Internet contacts is a continuing problem when trying to catch individuals committing wrongs. Thus it is necessary to craft legal standards to which Internet users and their transmissions can be held. For example, someone living outside the U.S. could be held as violating a criminal statute for transmitting material that falls under the Postal Service's "unmailable" category by applying the postal laws to e-mail transmissions.(138)
VI. POSTAL SERVICE ADVANCES IN COMPUTER TECHNOLOGY FOR PURPOSES OF KEEPING UP WITH ITS CUSTOMERS
Realizing the growth of the personal computer, the Postal Service is taking steps to adapt to the changing demands of the consumer.(139) With the continued growth of personal computing and e-mail, the Postal Service has developed a means to serve the public in this market.(140)
The Postal Service began an initiative in which it "would certify delivery and authenticate content of e-mail or other electronic documents."(141) "The electronic postmark will also vest the [Postal Service] with the authority to investigate allegations of e-mail tampering."(142) An electronic postmark would be obtained by routing the e-mail to the Postal Service's World Wide Web site.(143) The Postal Service would then forward the e-mail to its destination with an electronic "stamp" that includes the time and date.(144)
This service could be useful in a variety of ways. For example, the Internal Revenue Service allows individuals to file their taxes electronically,(145) but still imposes the April 15th filing deadline.(146) The electronic postmark could allow individuals taking advantage of this service to prove that their taxes were filed on time. Additionally, the electronic postmark could allow parties to a contract to determine when a contract can be enforced should any dispute as to the contract's terms arise.
Two other services, which the Postal Service is beginning to test, are "E-Stamp"(147) and "PostOffice Online."(148) E-Stamp will enable the purchase of postage via the Internet and the printing of envelopes with postage already affixed.(149) With PostOffice Online, a person can create mail using computer software applications such as MSWord and WordPerfect.(150) Instead of printing the document and manually mailing it, the sender chooses from a list of printing options and then instructs PostOffice Online to both print and mail the document to the intended addressee.(151) Furthermore, PostOffice Online allows small businesses to print labels for Express or Priority Mail and to track packages and confirm deliveries.(152) This service is extremely useful. For businesses that send out a great quantity of packages, Post Office Online could reduce the cost of obtaining additional postage. Furthermore, email can be used to track package deliveries.(153)
E-mail has become a permanent fixture in the everyday rigors of modern society. We constantly look for ways to communicate in a quicker and more efficient manner. However, we seem to have forgotten that we are not perfect. Mistakes can be made and technology can be exploited. Therefore, guidelines must be established in order to govern the information superhighway. Essentially, we need some sort of cyber-cops patrolling these waves of information. Applying postal regulations to e-mail transmissions would provide the government with the ability to protect the average Web surfer from people who look to prey on their naivete.
While the United States Code on nonmailable material was not created with electronic transmissions in mind, it does provide a more than adequate framework for the creation of legislation specifically tailored to that type of communication. As a matter of national security and domestic policy, e-mail must be protected and held to a higher standard than it is today.
(*) All information concerning the United States Postal Service was used with permission of the United States Postal Service, which otherwise did not participate or sponsor or have any other communication with authorship of this Note, and does not agree or disagree with the views expressed in the Note.
(1.) In 1995, the Rand Corporation released a report stating that the volume of electronic mail on the Internet in the United States exceeded the volume of mail handled by the United States Postal Service in 1993. See Gary Chapman, The Cutting Edge/Personal Technology Digital Nation/Gary Chapman Addressing a New Issue: E-mail for All, L.A. TIMES, May 26, 1997, at D4.
(2.) See Numbers, TIME, Jan. 25, 1999, at 23.
(3.) While 18 U.S.C. [sections] 1343 *1998), the "wire fraud" statute attempts to regulate "[f]raud by wire, radio, or television" and e-mail relies on telephone lines for its transmission, the application of this statute to e-mail poses some unique problems that applying the mail fraud statutes does not. Id. Specifically, wire fraud requires "interstate or foreign" transmissions. Id. Thus, the wire fraud statute leaves transmissions that are solely intrastate unprotected. Since e-mail transmissions that are solely in one state fall outside the purview of the wire fraud statute but within the grasp of the mail fraud statute, this Note examines and applies the more comprehensive mail fraud statutes.
(4.) The "Pony Express" was the idea of William H. Russell and U.S. Senator William M. Gwen, who wanted to establish a 10-day mail service to California. See Pony Express Home Station, Pony Express History (visited Jan. 17, 1999) <http://www.ccnet.com/~xptom/frm-history.html>. The Pony Express was in operation from April 3, 1860 until November 21, 1861. See id.
(5.) "Snail mail" is a term coined by e-mail users to describe regular mail because regular mail is "slow as a snail." See Anthony Palazzo, Postal Service: Touts Shipping, Direct Mail Shipping, Dow JONES NEWS SERVICE, Mar. 18, 1998, available in WL DJNS 15:44:00.
(6.) See GERALD CULLINAN, THE UNITED STATES POSTAL SERVICE 13 (1973). This repository is viewed as the first attempt in North America to establish an organized system of mail delivery. See id.; see also United States Postal Service, History of the United States Postal Service (visited Jan. 18, 1999) <http://www.usps.gov/history/his1.htm#DATES>.
(7.) See ARTHUR E. SOMMERFIELD & CHARLES HURD, U.S. MAIL THE STORY OF THE UNITED STATES POSTAL SERVICE 17-18, 23 (1960).
(8.) See id. at 14.
(9.) See id. at 78. Some of the technological innovations employed did not always remain as part of the Post Office's delivery arsenal. For example, on June 8, 1959, 3,000 pieces of mail were successfully delivered from a submarine to a naval base using a missile. See id. at 14.
(10.) See id.; see also Michael C. Bennett, Comment, Borre v. United States: An Improper Interpretation of Property Rights, 42 DE PAUL L. REV. 1499, 1502 (1993).
(11.) See SOMMERFIELD & HURD, supra note 7, at 95-96.
(12.) See CULLINAN, supra note 6 at 127-28. However, this particular plane never arrived; the pilot became lost along the way. See id. at 128.
(13.) See id.
(14.) See id.; see also United States Postal Service, History of the United States Postal Service (visited Jan. 18, 1999) <http://www.usps.gov/history/ his1.htm#DATES>. This marks the first time people from different continents were meaningfully linked and able to communicate freely. In this respect, the Postal Service helped lay the social foundation for the Internet's contemporary use; technology can be used to make the world a smaller place. See id.
(15.) See id.
(16.) See id. The idea of linking the world together today started to take place at this time. The trans-Pacific and trans-Atlantic airmail flights were a step toward worldwide communications. About this time, the use of airplanes as commercial carriers was developing. See id. Prior to trans-Pacific flights, mail from Asia was delivered by steam ship to Victoria, British Columbia, where it was picked up by planes for delivery in the U.S. See SOMMERFIELD & HURD, supra note 7, at 102.
(17.) See United States Postal Service, History of the United States Postal Service, (visited March 1, 1999) <http://www.usps.gov/history/ his1.htm#DATES>. An optical scanner allows computers to read the ZIP Codes of mail in order to sort and route the mail faster and more effectively. See id.
(18.) See id.
(19.) See United States Postal Service, A Consumer's Guide to Postal Services and Products (visited Jan. 18, 1999) <http://www.usps.gov/csmrguid/ abroad.htm#intel>.
(20.) See id. INTELPOST was "an international facsimile message service available between the United States and about 50 foreign countries. A black and white image of the document (text and/or graphic) is printed and delivered in the destination country." Id. The facsimile message could be delivered either the same day or the following day. See id.
(21.) See United States Postal Service, History of the United States Postal Service (visited Jan. 18, 1999) <http ://www.usps.gov/history/his1.htm#DATES>.
(22.) See United States Postal Service, History of the United States Postal Service (visited Mar. 1, 1999)<http://www.usps.gov/history/his1.htm#>
(23.) See id. This is the postal program most similar to today's e-mail. It allowed for instantaneous transmission of mail through computers. However, the Postal Service terminated the E-COM program in 1985. See id.
(24.) See id.
(25.) See generally ROBERT A. DIVINE, THE SPUTNIK CHALLENGE (1993) (tracing political history of the United States during the Sputnik era).
(26.) See id.
(27.) See Robert F. Goldman, Put Another Log on the Fire, There's a Chill on the Internet: The Effect of Applying Current Anti-obscenity Laws to Online Communications, 29 GA. L. REV. 1075, 1079 (1995).
(28.) See id.
(29.) See Dave Kristula, The History of the Internet (visited Nov. 3, 1997) <http://www.davesite.com/webstation/net-history.shtml>.
(30.) See id.
(31.) See id.
(32.) See Goldman, supra note 27, at 1080.
(33.) See id. The first study of the possibility of "networking" was released in 1965, entitled A Cooperative Network of Time-Sharing Computers. The Oxford English Dictionary cites the first known use of "network" in computer terminology as occurring in 1972. The ARPAnet report predates the Oxford English Dictionary by seven years. See 10 OXFORD ENGLISH DICTIONARY 346 (2d ed. 1989).
(34.) See Goldman, supra note 27, at 1080.
(35.) See id.
(36.) Protocols are "It]he rules and technical standards to be observed to perform a transaction between two computers." DON MACLEOD, THE INTERNET GUIDE FOR THE LEGAL RESEARCHER 294 (1995).
(37.) See id.
(38.) See id.
(39.) See id.
(40.) See id., also Adam Gaffin, EFF's Guide to the Internet (formerly the Big Dummy's Guide to the Internet) 18 (1994), available in <FTP.EFF.ORG> (Electronic Frontier Foundation's FTP site on the Internet).
(41.) See MACLEOD, supra note 36 at 294.
(42.) See id.
(43.) See Goldman, supra note 27, at 1081.
(45.) See Herb Brody, Of Bytes and Rights; Freedom of Expression and Electronic Communications, 95 TECH. REV. 22, 24 (1992).
(46.) See id.
(47.) See Goldman, supra note 27, at 1081.
(48.) Id. at 1082. For a more thorough discussion of telnetting, see MARK VELJKOV & GEORGE HARTNELL, POCKET GUIDES TO THE INTERNET, VOL. 1: TELNETTING (1994). For a more thorough discussion of FTP, see MARK VELJKOV & GEORGE HARTNELL, POCKET GUIDES TO THE INTERNET, VOL. 2: TRANSFERRING FILES WITH FILE TRANSFER PROTOCOL (FTP) (1994).
(49.) See Keane Kassel, Don't Get Caught in the Net: An Intellectual Property Practitioner's Guide to Using the Internet, 13 J. MARSHALL J. COMPUTER & INFO. L. 373, 382 (1995).
(50.) See Gaffin, supra note 40, at 107. In FFP a user logs on "to a site (using ... FTP software), then ... choose[s] a file to transfer." Bill Easles, Internet Dictionary -A Collection of Terms Common to the Internet (visited Mar. 25, 1999) <http://www.oh-no.com/define.html>.
(51.) See Gaffin, supra note 40, at 107.
(52.) See id. There are rules of etiquette for visiting another's hard drive. See id. For example, one should not access most FTP sites during business hours because the file exchange uses a considerable amount of computing power, detracting from the FTP site computer's main function. See id. at 107-8.
(53.) See Gaffin, supra note 40, at 23.
(54.) See Goldman, supra note 27, at 1084.
(55.) National Archives and Records Administration, 60 Fed. Reg. 44,634, 44,641 (1995) (to be codified at 36 C.F.R. [sections] 1234.2).
(57.) A telex is "a communications system consisting of teletypewriters connected to a telephonic network to send and receive signals" THE AMERICAN HERITAGE DICTIONARY, 1846 (3d. ed. 1992). Telex messages are similar to e-mail messages. The message is sent by a typewriter, which is then electronically transmitted to its destination. See RICHARD A. KUEHN, COST-EFFECTIVE TELECOMMUNICATIONS, 50-51 (1975).
(58.) See Laurie Thomas Lee, Watch Your E-mail! Employee E-mail Monitoring and Privacy Law in the Age of the "Electronic Sweatshop", 28 J. MARSHALL L. REV. 139, 139 (1994).
(59.) See Matthew Goldstein, Electronic Mail, Computer Messages Present Knotty Issues of Discovery, N.Y.L.J., Feb. 8, 1994, at 1, 5.
(60.) See Frank C. Morris, Jr., E-Mail Communications: The Next Employment Law Nightmare, CA30 ALI-ABA 571, 573 (1994).
(61.) See id.
(62.) See id.
(63.) See Numbers, TIME, Jan. 25, 1999, at 23.
(64.) See Leon Jaroff, Age of the Road Warrior, TIME, Special Issue: Welcome to Cyberspace, Spring 1995, at 38. The movement towards this "telecommuting" will have the effect of eliminating the need for paper records and file cabinets. See id. Instead, all business records may be stored electronically. See id.
(65.) See, e.g., Leslie Helm, The Digital Smoking Gun: Mismanaged E-Mail Poses Serious Risks, Experts Warn, L.A. TIMES, June 16, 1994, at DI.
(66.) See Miranda Ewell, E-mail: Is the Boss Peeking?, SAN JOSE MERCURY NEWS, Apr. 18, 1994, at 12A.
(67.) Note, The Message in the Medium: The First Amendment on the Information Superhighway, 107 HARV. L. REV. 1062, 1067 (1994).
(68.) See America Online, Inc., About the Company: Profile (visited Jan. 16, 1999) <http:www.aol.com/corp/profile/>.
(70.) See Elizabeth Blumenfeld, Trademark and Copyright Issues and the Internet, SB 77 ALI-ABA 323, 370 (April 10, 1997). The Terms of Services Agreement states in pertinent part: "America Online, Inc. ("AOL, Inc.") provides its America Online service ... to you as a registered subscriber or authorized user, subject to the terms of this agreement and AOL, Inc.'s operating rules or the `Rules of the Road'...." Id.
(71.) See id. at 372-74.
(72.) See id. at 373.
(73.) See id. at 374.
(74.) See id.
(75.) Id. at 373.
(76.) Id. at 374.
(78.) See id. The term "spam mail" and "spamming" originated from a Monty Python television comedy skit. See Lucille Redmond, Spare, spare, spare, spare, spare and spare Too much spare on your plate?, IRISH TIMES, June 1, 1998, at 18.
(79.) See Frank C. Morris Jr., supra note 60, at 374; see also Spare Slammers get noticed, Multimedia Daily, Feb. 6, 1998, available in 1998 WL 6568730.
(80.) See Jared Sandberg, Lawyers Whose Ads Crashed the Internet Help You Do It Too; New Effort to Push Envelope Spooks Many Who Fear Junk Mail in Cyberspace, WALL ST. J., May 9, 1994, at B2.
(81.) See Sandberg, supra note 80, at B2. "Netiquette" is the unwritten rules of conduct, or etiquette for the Internet.
(82.) One entrepreneur, Jeff Slaton, calls himself the "Spam King" and has developed his own business by charging customers a flat fee to distribute their unwanted "junk e-mail" over the Internet. See Simon L. Garfinkel, The King of Spam, Scattershot on Internet Lambasted as Cyber-Junk Mail, SAN JOSE MERCURY NEWS, Oct. 24, 1995, at A1.
(83.) The United States Constitution provides for the federal government to regulate "letter mail" delivery. See U.S. CONST. Art. I, 8 8, cl. 7; see also Commonwealth v. United States Postal Serv., 810 F. Supp. 605, 609 (M.D. Pa. 1992), rev'd 13 F.3d 62 (3d Cir. 1993).
(84.) See 39 U.S.C. 88 101-5604 (1994).
(85.) See 18 U.S.C. 88 1691-1738 (1994).
(86.) See 39 U.S.C. [sections] 3001(a) (1994). This act marked the transformation of the Post Office Department into a government-owned corporation known as the Postal Service.
(87.) 18 U.S.C. [sections] 1714 has been repealed. See Pub. L. 101-647, Title XII, [sections] 1210(b), Nov. 29, 1990, 104 Stat. 4832. However, the current version of the United States Code still lists this section in its text. Therefore, this section is included only to preserve the context of the statute.
(88.) This section of the Code deals with regulations regarding the mailing of firearms. See 18 U.S.C. [sections] 1715 (1994). Obviously, this statute could not be applied to e-mail transmissions. Again, this section is discussed for the purpose of comprehensively reciting the text of 39 U.S.C. [sections] 3001(a).
(89.) 18 U.S.C. [sections] 1718, repealed by Pub.L. No. 101-647, [sections] 1210(c), 104 Stat. 4832.
(90.) 39 U.S.C. [sections] 3001(a) (1994).
(91.) 18 U.S.C. [sections] 1302 (1994).
(93.) See, e.g., Stone v. Mississippi, 101 U.S. 814, 818-21 (1880) (stating that gambling may be harmful to the public and that the government may rightfully exercise its powers to limit the detrimental effects of it).
(94.) See, e.g., James Anderson, Internet gambling: hot new service in Caribbean, LI Bus. NEWS, Aug. 24, 1998, available in 1998 WL 9774539.
(95.) See id.
(96.) 18 U.S.C. [sections] 1341 (1994).
(98.) See Parr v. U.S., 363 U.S. 370, 393-94 (1960) (stating that 18 U.S.C. section 1341 requires that the mailings in question be used to further a scheme to defraud).
(99.) See, e.g., ACLU v. Miller, 977 F. Supp. 1228, 1232-33 (1997).
(100.) See ALI-ABA Course of Study, supra note 70 and accompanying text.
(101.) 18 U.S.C. [sections] 1342 (1994). The added penalty of using a fictitious name is an added fine, and/or imprisonment for five years. See id.
(102.) See id. [sections] 1461. This section is entitled, "Mailing obscene or crimeinciting matter." Id.
(103.) Id. (defining the term "indecent" to include matter that would incite murder, arson, or assassination).
(104.) See, e.g., Ex parte Jackson, 96 U.S. 727, 736 (1877) (declaring Congress's intent in enacting this statute to prevent the circulation of immoral material, not to vitiate the freedom of the press or other civil liberties).
(105.) See, e.g., U.S. v. Coenen, 135 F.3d 938 (5th Cir. 1998) (upholding conditions of release from conviction for transmission of child pornography); Reno v. ACLU, 521 U.S. 844 (1997) (stating that the Internet is rife with pornographic materials).
(106.) This will not solve the problem of obtaining pornographic pictures of children at various sites throughout the web. Congress, through its passing of the Communications Decency Act of 1996 (CDA), attempted to combat child pornography and other types of obscene materials being transmitted to minors over the Internet. See 47 U.S.C.A. [sections] 223 (West 1997 & Supp. 1998). However, this failed to stand up to a constitutional challenge. See Reno v. ACLU, 117 S. Ct. 2329, 2351 (1997) (finding that the CDA created content-based restrictions that were facially overbroad and in violation of the First Amendment).
(107.) 18 U.S.C. [sections] 1463 (1994).
(108.) The term "subject" refers to a field that the sender of an e-mail can use to give a brief description of the content of the message. It is entirely the prerogative of the sender to determine what language is written into this field.
(109.) See 18 U.S.C. [sections] 1716 (1994). However, this section does permit certain items, which would otherwise be unmailable, to be mailed if it is done by an authorized person or is for an authorized use. See id. [sections] 1716(d), (e). For example, live scorpions can be transmitted via the Postal Service when they are being used for medical research or in the manufacture of anti-venom. See id. [sections] 1716(c).
(110.) See id. [sections] 1716(a).
(111.) See id.
(112) See e.g. Eric Niiler, Information Explosion Hits Home: Randolph Sees Internet's Dark Side, Patriot Ledger, Apr. 29, 1995, at S9. In April 1995, three junior high school students were arrested for throwing a homemade firebomb at a school building. See id. The plans to make the bomb were obtained from another student who had download them from the Internet. See id.
(113.) The statute punishes wrongdoers in accordance to the harm they commit. For example, mailing material deemed nonmailable by this section is punishable by fine or one year in prison, or both. See 18 U.S.C. [sections] 1716(i)(2)(1994). If the unmailable material is mailed with the intent of
killing or injuring another, the penalty becomes a fine of up to $10,000 or twenty years in prison, or both. See id. Finally. if sending unmailable material results in the death of another, the person mailing the material may be subject to the death penalty or imprisonment for life. See id.
(114.) See id. [sections] 1717. This section of the Code is entitled "letters ad writings as nonmailable." Id.
(115.) Id. [sections] 1717(a)
(116.) See Id. [sections] 1717(b)
(117.) See Gitlow v. Kiely, 44 F.2d 227, 228 (D.C.N.Y. 1930) (finding that exclusion of a seditious publication from the mails did not interfere with "freedom of press" as guaranteed by the First Amendment).
(118.) 39 U.S.C. [subsections] 3001-3015 (1994).
(119.) See 39 U.S.C. [sections] 3008(b).
(121.) See 39 U.S.C. [sections] 3008(a). Unlike other statutes that apply the standard of the community in which the material would be viewed, this standard is solely at the discretion of the individual receiving the mail. See id.
(122.) Id. [sections] 3008(b).
(123.) See id. [sections] 3008(c).
(124.) See Rowan v. United States Post Office Dep't, 397 U.S. 728, 740 (1970) (holding that the Postal Act is not a violation of the Due Process clause of the Fifth Amendment).
(125.) See id. at 737-38.
(126.) See id. at 740. Former 39 U.S.C. [sections] 4009 (1964) is now the current 39 U.S.C. [sections] 3008 (1994). The old code referred to the Postmaster General whereas the new code refers to the Postal Service. However, the substantive provisions of the code have not been altered for this difference.
(127.) See ALI-ABA Course of Study, supra note 70 and accompanying text. AOL, Inc. refuses to transmit what it deems to be offensive communication. See id. However, their power seems to only be limited to that solution. If the sender of the e-mail does not subscribe to AOL, Inc.'s service, AOL, Inc. would not be able to kick the perpetrator of the offensive communication off the service.
(128.) 39 U.S.C. [sections] 3003 (1994).
(129.) Id. [sections] 3003(a)(1), (2).
(130.) 952 F. Supp. 1119 (W.D. Pa. 1997).
(131.) See id. at 1125-26.
(132.) See id. at 1124. Finding personal jurisdiction is based on a sliding scale. See id. The court must consider how substantial the use of the Internet is. The greater the amount of information being transmitted and the level of interactivity via the Internet are, the more likely it is that a court could exercise personal jurisdiction over a foreign party.
(133.) 977 F. Supp. 404 (E.D. Va. 1997).
(134.) See id. at 407-08. In this case, the Court applied the sliding scale analysis posited by the court in Zippo Manufacturing Co. v. Zippo Dot Com, Inc. See id.
(135.) 126 F.3d 25 (2d Cir. 1997).
(136.) See id. at 29. The court found that the tortuous act in this case was not committed in New York but in Missouri. See id.
(138.) See 39 U.S.C. [sections] 3001(k) (1994) (creating and vesting jurisdiction over the Postal Service in the District Courts).
(139.) See United States Postal Service, Post Office Online (visited Feb. 8, 1999) <http://www.postofficeonline.com/POLPublic20/Survey/NewUser.asp>.
(140.) See id.
(141.) Postal Service -2: Touts Shipping, Direct-Mail Services, Dow JONES NEWS SERVICE, Mar. 18, 1998, available in WL DJNS 15:44:00 (hereinafter "Postal Service -2").
(142.) See E-mail Postmarking Project Launches, 2 NO. 11 MULTIMEDIA STRATEGIST 1, Sept. 1996.
(143.) See id. The Postal Service's Web Site is: http://www.usps.gov/.
(144.) See id. The postmark could serve as evidence during litigation and prove that a document existed at a certain time and was not tampered with between the Postal web site and its destination. See id.
(145.) See IRS, The Digital Daily Tax Calendar (visited Feb. 8, 1999) <http://www.irs.ustreas.gov/prod/tax_edu/tax_cal/0499tc.html>.
(146.) See IRS, Electronic Services (visited Feb. 8, 1999) <http://www.irs.ustreas.gov/prod/elec_svs/index.html>.
(147.) See Matthew Nelson, E-Stamp Receives Big Backing for Net-Based Postage Sales, INFOWORLD, Sept. 29, 1997, available in 1997 WL 14195712.
(148.) See Postal Service -2, supra note 141.
(149.) See Nelson, supra note 147. The value of the "E-Stamps" will be held in an "electronic vault" on the computer to prevent theft. See id.
(150.) See United States Postal Service, PostOffice Online: Mailing Online Demo (visited Jan. 18, 1999). <http://www.postofficeonline.com/POLPublic20/ demo/mail_demo 1 .html>.
(151.) See id.
(152.) See Postal Service -2, supra note 141; see also United States Postal Service, PostOffice Online: Shipping Online Demo (visited Jan. 18, 1999)
(153.) See Postal Service -2, supra note 141; see also FedEx, Tracking (visited Feb. 8, 1999) <http:///www.fedex.com/US/tracking/>
Timothy Coughlan, J.D. Candidate 1999, Rutgers School of Law - Newark.3
|Printer friendly Cite/link Email Feedback|
|Publication:||Rutgers Computer & Technology Law Journal|
|Date:||Jun 22, 1999|
|Previous Article:||Korea's road toward respecting intellectual property rights.|
|Next Article:||Thirty-first selected bibliography on computers, technology and the law.|