Well, as far as I can understand it, this is the position…
The Federal Trade Commission (FTC) has been trying to clamp down on telemarketing (cold-calling to you and me). It set up a do-not-call registry on which you can lodge your number if you do not wish to be pestered by marketers’ phone calls. The telemarketers’ industry association then went to court, arguing that their First Amendment rights were being violated by this high-handed government interference. On September 29 a judge (named Nottingham) agreed and granted the pests an order that barred the FTC from fining them for dialling registered numbers. The Commission announced that it would appeal all the way to the Supremes and yesterday a federal appeals court let the FTC enforce its do-not-call program against telemarketers, pending the outcome of its appeal against the Nottingham ruling. The Appeals Court judges seem to think that the FTC will win the Constitutional case. And why not? It seems daft to maintain that a double-glazing salesman has Free Speech rights to intrude on my privacy.
This tele-marketing case, however, is really just a dry-run for the spam problem. Here the spammers seem to have convinced the Congress that they also have Constitutional Rights to fill one’s personal inbox with revolting ads for unmentionable products. This has led Congress to the perverse idea that enabling people to ‘opt out’ of spam is the way to solve the problem — analogously to the telemarketing policy. So anyone wishing to avoid spam will have to register his email address(es) with some federal body which will then be empowered to fine spammers for violations. As if… !
It’s a patently daft and unworkable approach. Compare it with the emerging (and broadly sensible) EU policy — which is that consumers would actively have to ‘opt in’ to receive unsolicited email. But because the Net is a global system, the EU policy cannot work so long as the US operates a diametrically opposed approach. We’re doomed.