Webupon

The World Wide Web grew out of the concept of Freedom of Expression. One source of that idea is the First Amendment of The U.S. Constitution, which reads, “Congress shall make no law … abridging the freedom of speech, or of the press…” The web has grown at a mind-boggling pace because of that ethos among web surfers to promote Freedom of Expression.

The debate over spam qualifies expression on the web. If the web is a wild, raging horse, the spam debate is its harness. The concept of spam draws from the tradition of privacy, and from the power of the state to regulate. Support for the concept of privacy is found in the Constitution in the First, Third, Fourth and Ninth Amendments. Articles I and II of the Constitution grant power to the Congress and the Executive, and these provisions have been used to regulate the web.

“Spam” is something of a nebulous term. It definitely includes the mass mailing of emails without the request or consent of the receiver. Unfortunately, it seems to have an ever-expanding definition. Some people use it to mean any type of activity they don’t want to see on the web, or any “unsolicited communication”. Some forum administrators use it to mean posts that they find offensive.

In reality, people receive unsolicited communication all the time. Car horns blow and street merchants wail advertisements. TV is ubiquitous; it can only be escaped in the most remote parts of the country. In fact, there is no escaping communication from TV and radio in American cities, unless one walks around blindfolded with earphones.

Whether the draconian penalties for sending mass unsolicited emails will stand the test of time is questionable. People have received ten year prison sentences for pressing a button on a computer and sending a million emails; in earlier years of the Republic that type of act might have been protected commercial speech. It was only in the Twentieth Century that the Supreme Court made the distinction between “political” and “commercial” speech, affording a higher level of protection to the former. The founders made no such distinction. It may be that other networks independent of the web evolve in which mass email is an allowable form of commercial speech.

To the extent that Freedom of Expression prevails, the web will thrive and flourish. The qualifying concept that necessarily limits expression is privacy, and in the context of the web, that means protection from spam. The key to promoting the growth of the web is balancing Freedom of Expression and Privacy.