1996 Michael W. Carroll.

† J.D., 1996, Georgetown University Law Center; A.B., 1986, University of Chicago. I would like to thank Susan Low Bloch, Richard Chused, Ron Friedmann and the editors of the Berkeley Technology Law Journal for their substantive comments and suggestions. Thanks also go to Kristy, Madeleine, Vivian, William and Roberta Carroll for their patience and support.

†† An earlier version of this article won first prize in the 1996 Berkeley Technology Law Journal Comment Competition.

1. For example, when predicting the benefits made possible by developments in digital technology, the Commerce Department gushed:

Imagine you had a device that combined a telephone, a TV, a camcorder, and a personal computer. No matter where you went or what time it was, your child could see you and talk to you, you could watch a replay of your team's last game, you could browse the latest additions to the library, or you could find the best prices in town on groceries, furniture, clothes-whatever you needed.

 Administration Policy Statement, 58 Fed. Reg. 49,025, 49,026 (1993).

2. A recent widespread commercial solicitation on the Internet is an advertisement for the "Euphoria Tape" which exhorts recipients to "[d]o the Euphoria Tape alone the first time, and then with a lover. It's a phenomenon you will feel within the first 3 minutes-what you feel the rest of the time is unbelievable. [The tape is] an audio stimulation of brain centers controlling pleasure." Rusty Coats, Marketers Jamming the Internet with Junk E-mail, SACRAMENTO BEE, Feb. 7, 1996, at D2.

3. Within the industry there is some rivalry between direct marketers and mass marketers; many in the direct marketing industry blame television advertisers for labeling direct mail as "junk mail." See, e.g., James R. Rosenfield, Confessions of a Gasp "Junk Mailer", DIRECT, May 1994, at 82 (pointing out that most television advertising is as much junk as is direct advertising).

4. See id.

5. This is the term used by Internet inhabitants for electronic junk mail. See infra part II.A.

6. The First Amendment to the United States Constitution simply provides: "Congress shall make no law . . . abridging the freedom of speech, or of the press . . . ." U.S. CONST. amend. I.

7. See Project 80's, Inc. v. City of Pocatello, 942 F.2d 635, 639 (9th Cir. 1991); Howard B. Altman, Note, Strangers in the Night: Ordinances Restricting the Hours of Door-to-Door Solicitation, 63 WASH. U. L.Q. 71, 77-78 (1985).

8. See, e.g., Rowan v. United States Post Office, 397 U.S. 728 (1970).

9. See generally Mark S. Nadel, Rings of Privacy: Unsolicited Telephone Calls and the Right of Privacy, 4 YALE J. ON REG. 99 (1986) (referring to cases, statutes and FCC regulations on junk phone calls).

10. See Jennifer L. Radner, Comment, Phone, Fax and Frustration: Electronic Commercial Speech and Nuisance Law, 42 EMORY L.J. 359 (1993).

11. With regard to unsolicited "snail" mail from attorneys, see Shapero v. Kentucky Bar Assoc., 486 U.S. 466 (1988); Katherine A. Laroe, Comment, Much Ado About Barratry: State Regulation of Attorney's Targeted Direct-Mail Solicitation, 25 ST. MARY'S L.J. 1513 (1994). With regard to unsolicited electronic mail from attorneys, see generally Michael L. Winick, et al., Attorney Advertising on the Internet: From Arizona to Texas-Regulating Speech on the Cyber-Frontier, 27 TEX. TECH L. REV. 1487 (1996); Brian G. Gilpin, Note, Attorney Advertising and Solicitation on the Internet: Complying with Ethics Regulations and Netiquette, 13 J. MARSHALL J. COMPUTER & INFO. L. 697 (1995).

12. Valentine v. Chrestensen, 316 U.S. 52, 54 (1942).

13. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 761-70 (1976).

14. See generally Ronald K. L. Collins & David M. Skover, Commerce & Communication, 71 TEX. L. REV. 697 (1993); Alexander Kozinski & Stuart Banner, Who's Afraid of Commercial Speech?, 76 VA. L. REV. 627 (1990).

15. Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 564-65 (1980); accord Florida Bar v. Went For It, Inc., 115 S. Ct. 2371, 2375-76 (1995).

16. Edenfield v. Fane, 507 U.S. 761, 770-71 (1993).

17. Rubin v. Coors Brewing Co., 115 S. Ct. 1585, 1592 (1995) (citing Edenfield, 507 U.S. at 770-71).

18. Board of Trustees v. Fox, 492 U.S. 469, 480 (1989).

19. City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 418 n.13 (1993) (invalidating city ordinance that selectively banned newsracks belonging to commercial handbill distributors but not those belonging to newspapers).

20. See, e.g., Florida Bar v. Went For It, Inc., 115 S. Ct. 2371 (1995); Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1988).

21. Hynes v. Mayor of Oradell, 425 U.S. 610, 619 (1976).

22. Martin v. City of Struthers, 319 U.S. 141, 145-46 (1943).

23. Id. at 149.

24. E.g., Pennsylvania Alliance for Jobs & Energy v. Council of Munhall, 743 F.2d 182, 185 (3d Cir. 1984).

25. See Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 564-65 (1980).

26. See Project 80's, Inc. v. City of Pocatello, 942 F.2d 635, 639 (9th Cir. 1991) (holding, on remand from Supreme Court, that even under the Fox "reasonable fit" standard, complete ban on commercial solicitation is unnecessarily broad in furthering the state's interest in protecting privacy and preventing crime).

27. Id. at 638-39.

28. See Postal Notes, WASH. POST, Feb. 21, 1996, at A17 (Postal Service advertisement admonishing the public to respect direct mail and not use phrase "junk mail"). In fact, the United States Postal Service is aggressively seeking to increase the volume of junk mail sent by advertisers. See WALL ST. J., Oct. 25, 1996, at B22 (full-color, full-page advertisement promoting the benefits to advertisers of "direct mail" over mass media advertising).

29. Compare, e.g., Denison Hatch, An Alternative to "Do Not Mail", TARGET MARKETING, March 1995, at 80 (exhorting industry colleagues to challenge negative publicity on junk mail) with Rosenfield, supra note 3, at 82; Phil Herring, Life Beyond the Spreadsheet; the Future of Direct Marketing, FUND RAISING MGMT., January 1992, at 36 (urging direct marketers to accept term "junk mail" and to respond by better targeting audience so that unsolicited mail no longer will be considered "junk").

This rhetorical battle seems ill-advised on several levels. First, it is insulting to people who consider unwanted solicitations to be junk to tell them otherwise. See, e.g., Make Post Office Recycle Junk Mail, WIS. ST. J., Feb. 17, 1996, at 7A (letter to editor) (expressing anger at Post Office advertising campaign against moniker "junk mail"). Second, attaching or removing the label "junk" will not in itself alter consumer behavior. Why, for instance, have we not seen an analogous campaign waged by Frito-Lay to relabel "junk food" as "fun food" or some such name? A recipient may occasionally respond to an unsolicited solicitation but continue to regard the entire class of such communications as "junk."

30. See "Stop the Junk Mail" Kit Soothes Raw Nerve of American Public; Cuts Out Virtually All Junk Mail While Allowing Wanted Mail to Get Through, PR NEWSWIRE, Nov. 21, 1995, available in LEXIS, News Library, Wires File [hereinafter Stop the Junk Mail]; Michael W. Miller, "Greens" Add to Junk Mail Mountain, WALL ST. J., May 13, 1991, at B1 (putting the figure at 63 billion for 1990).

31. Stop the Junk Mail, supra note 30. Others estimate that only fifteen percent of the unsolicited pieces of mail were discarded unopened. Miller, supra note 30, at B1.

32. See Herring, supra note 29, at 36.

33. See Rosenfield, supra note 3, at 82 ("Everyone knows that more than 90% of direct mail turns into literal junk; how many people get response rates of more than 10%, particularly in mass mailings?").

34. Postal Panel OKs Rate Cut for Junk Mail; Commission Rejects Hike in Price of 1st-Class Stamp, CHI. TRIB., Jan. 27, 1996, at N1.

35. See, e.g., Stop the Junk Mail, supra note 30.

36. A company marketing a "Stop the Junk Mail" kit that will filter out unwanted mail received 7,000 calls in its first two weeks in business. Id. Private Citizen, Inc. (1-800-288-5865), an Illinois company, sells a service to remove people's names both from junk mail address lists and national telephone solicitation lists.

37. See CHRIS CALLWELL, 50 SIMPLE THINGS YOU CAN DO TO SAVE THE EARTH (1991) (best-selling book urging a stop to unwanted junk mail as first suggestion).

38. See Paul N. Bloom, et al., Avoiding Misuse of New Information Technologies: Legal and Societal Considerations, 58 J. MARKETING 98 (1994) (describing, inter alia, environmentalists' shift from command "Stop Junk Mail" to "Stop Unwanted Junk Mail" in CALLWELL, supra note 37).

39. See Hatch, supra note 29, at 80 ("So far some 430 bills have been introduced in federal and state legislatures to limit ad mail, limit the access to names, the rental of lists and the perceived invasion of privacy."); Herring, supra note 29, at 36 ("There are currently 600 bills at the state and federal level which directly affect direct marketers, covering telemarketing, privacy and environmental issues.").

40. To be removed from junk mail lists, write to: Mail Preference Service, P.O. Box 9008, Farmingdale, N.Y. 11735-9008. To be removed from telephone marketing lists, write to: Telephone Preference Service, P.O. Box 9014, Farmingdale, N.Y. 11735-9014. In both cases, supply full name, variations on one's name, full address and phone number.

41. Hatch, supra note 29, at 80. Approximately 875 million names (including variations on the same name) have been deleted as of May 1994. Tara Aronson, Fighting Back, S.F. CHRON., May 25, 1994, at 1Z1.

42. Junk Mail Crusader Wins Battle in Small Claims Court (National Public Radio broadcast, Feb. 8, 1996) , available in LEXIS, News Library, Script File. A San Diego software engineer, Robert Beken, bought a book at a Computer City outlet. On the back of his check he wrote the following contract:

Computer City agrees not to place Robert Beken on any mailing list or send him any advertisements or mailings. Computer City agrees that breach of this agreement by Computer City will damage Robert Beken and that these damages may be pursued in court, further, that these damages for the first breach are [$1,000]. The deposit of this check for payment is agreement with these terms and conditions.

 Id. Shortly after the store cashed his check, Mr. Beken received a number of advertisements from the chain. Mr. Beken sued the retailer in San Diego Municipal Court and was awarded $1,000 plus $21 in court costs. Id.

43. Ram Avrahami filed his suit against U.S. News and World Report for selling his name and address without obtaining his permission. Paula Squires, Lawsuit Could Force Direct-Mail Firms to Change Tactics, RICHMOND TIMES DISPATCH, Feb. 4, 1996, at E1. Mr. Avrahami filed the suit in the Arlington County General District Court (small claims) seeking $100 in compensatory damages and $1,000 in punitive damages. Id. The Court dismissed the suit without prejudice in February 1996 on the ground that it did not have jurisdiction to grant the relief sought. Paula Squires, Junk Mail Suit Unexpectedly Dismissed, RICHMOND TIMES DISPATCH, Feb. 7, 1996, at C1. U.S. News filed a parallel action in the Arlington County Circuit Court (trial court of general jurisdiction) for a declaration of the legality of its practice of trafficking in names and addresses. The trial in that case was held on June 6, 1996, the court ruled in favor of U.S. News, and, on September 11, 1996, Mr. Avrahami appealed to the Virginia Supreme Court. Steve Twomey, A Brave Heart Fights Fiercely For Our Names, WASH. POST, Sept. 30, 1996, at B1.

44. Terry Pristin, New Jersey Daily Briefing; Bill Would Curtail Junk Mail, N.Y. TIMES, Feb. 12, 1996, at B1; Ken Liebeskind, NJ Sen. to Propose Opt-in Legislation; Invasion of Privacy Must End, says Codey, DM NEWS, Jan. 22, 1996, at 1.

45. Rowan v. United States Post Office, 397 U.S. 728, 736 (1970).

46. Id. at 736-37 (upholding federal statute allowing recipient unfettered discretion to request that the Postmaster inform a sender to stop sending any future mailings to that recipient).

47. Id. at 736.

48. See, e.g., South-Suburban Hous. Ctr. v. Greater S. Suburban Bd. of Realtors, 935 F.2d 868 (7th Cir. 1991) (upholding municipal ordinance precluding real estate agents from mailing solicitations to homeowners who had indicated a desire not to receive those solicitations); Curtis v. Thompson, 840 F.2d 1291 (7th Cir. 1988) (upholding state statute with similar real estate prohibition); Baldigo v. Postmaster Gen., 514 F.2d 142 (7th Cir. 1975).

While these cases uniformly recognize the substantiality of an individual's privacy interest while in her home, the privacy interest of a public official in her office is quite circumscribed. United States Postal Service v. Hustler Magazine, Inc., 630 F. Supp. 867 (1986) (holding that Members of Congress cannot use the statute upheld in Rowan to stop receipt of lewd magazine at their offices because magazine publisher has an independent right to petition the government, which changes the balance struck in Rowan as applied to Congressional offices). What is left untested in the junk mail context is the strength of a business entity's privacy interest in regulating the inflow of junk mail.

49. See Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 75 (1983) (declaring unconstitutional a federal statute that prohibited unsolicited mailing of advertisements for contraceptives); cf. Hannegan v. Esquire, Inc., 327 U.S. 146, 157 (1946) (invalidating Postmaster General's procedure by which it determined postal rates according to whether publication "contributes to the public good and public welfare").

50. Bolger, 463 U.S. at 72.

51. Id. (quoting Lamont v. Commissioner of Motor Vehicles, 269 F. Supp. 880, 883 (S.D.N.Y.), aff'd, 386 F.2d 449 (2d Cir. 1967), cert. denied, 391 U.S. 915 (1968)).

52. See, e.g., Florida Bar v. Went For It, Inc., 115 S. Ct. 2371, 2378-79 (1995) (5-4 decision) (allowing for 30-day post-accident ban on targeted mail by attorneys).

53. See id. at 2381.

54. See, e.g., In re R.M.J., 455 U.S. 191, 206 n.20 (1982) (holding that imposition of labeling requirement is constitutional); Texans Against Censorship, Inc. v. State Bar, 888 F. Supp. 1328 (E.D. Tex. 1995) (upholding attorney disciplinary rules requiring attorneys to mark unsolicited solicitations made by mail as an "Advertisement" when such mail is likely to provoke anxiety in recipient); Spencer v. Honorable Justices, 579 F. Supp. 880, 890 n.13 (E.D. Pa. 1984) (indicating labeling requirement for unsolicited solicitation by attorney sufficient protection of privacy for those potentially offended by solicitation); Florida Bar v. Herrick, 571 So. 2d 1303, 1305-07 (Fla. 1990) (disciplining lawyer who sent letter not marked "Advertisement"); see also Laroe, supra note 11, at 1549 (1994) (appendix collecting state laws requiring attorneys to identify solicitations as such).

55. Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 564-65 (1980).

56. Under current First Amendment doctrine, a regulation prohibiting condom advertisements also could be struck down as a content-based regulation that fails to remain viewpoint-neutral. See R.A.V. v. St. Paul, 505 U.S. 377, 387-90 (1992).

57. Revenues from telephone solicitations increased sixfold from 1982 to 1983. Telephone Calls from Computers May Be Curbed by Lawmakers, INVESTOR'S DAILY, Aug. 15, 1991, at 25.

58. Memorandum Opinion and Order, In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 10 F.C.C.R. 12391, 12392 (1995) [hereinafter Memorandum Opinion and Order].

59. "The term 'automatic telephone dialing' system means equipment which has the capacity-(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers." 47 U.S.C. § 227(a)(1) (1994).

60. For example, an auto-dialing machine with a cost of $1,800 enables the owner to dial 1,500 telephone numbers per day with no more effort than pushing a button. Ann Marie Arcadi, Note, What About the Lucky Leprechaun?: An Argument Against "The Telephone Consumer Protection Act of 1991", 1991 COLUM. BUS. L. REV. 417, 418 & n.5 (citing interview with manufacturer of automatic telephone dialing systems).

61. Nadel, supra note 9, at 103; Consuelo Lauda Kertz & Lisa Boardman Burnette, Telemarketing Tug-of-War: Balancing Telephone Information Technology and the First Amendment with Consumer Protection and Privacy, 43 SYRACUSE L. REV. 1029, 1063 (1992) ("[T]elephone messages received in one's home are more invasive of privacy rights than mail, television messages, or telephone messages received in the office."); see also Nadel, supra note 9, at 99 n.6 (summarizing results of a 1978 research report commissioned by Pacific Telephone Company). In the survey, only 0.1% of respondents "liked" receiving calls made by sales people, and only 9.1% "did not mind" receiving such calls. Id.

62. As one court has remarked: "A ringing telephone is an imperative, which, in the minds of many, must be obeyed with a prompt answer." People v. Weeks, 591 P.2d 91, 96 (Colo. 1979).

63. Nadel, supra note 9, at 103 n.23 (citing FRANKLYN HAIMAN, SPEECH AND LAW IN A FREE SOCIETY 146 (1981)).

64. Congress found that automated calls are "more of a nuisance and a greater invasion of privacy than calls placed by 'live' persons" because the caller "cannot interact with the customer except in preprogrammed ways" and these calls "do not allow the caller to feel the frustration of the called party . . . ." Telephone Consumer Protection Act of 1991, S. Rep. No. 178, 102d Cong., 1st Sess. (1991), reprinted in 1991 U.S.C.C.A.N. 1968, 1970; see also Nadel, supra note 9, at 100 n.7.

65. See supra note 40 (providing address of the Direct Marketing Association's Telephone Preference Service).

66. For anecdotal evidence of that frustration, see Thomas Petzinger, Jr., They Keep Workers Motivated to Make Annoying Phone Calls, WALL ST. J., Sept. 20, 1996, at B1 (describing the abuse and rejection faced by those who place junk phone calls).

67. See Telephone Advertising Consumer Rights Act, S. 1410, 102d Cong., 1st Sess. (1991) (presenting as a finding that "[m]any consumers are outraged over the proliferation of intrusive, nuisance calls to their homes from telemarketers").

68. Pub. L. No. 102-243, 105 Stat. 2394 (1991) (codified at 47 U.S.C. § 227 (1994)). For a discussion of the TCPA's legislative history, see Howard E. Berkenblit, Note, Can Those Telemarketing Machines Keep Calling Me?, The Telephone Consumer Protection Act of 1991 After Moser v. FCC, 36 B.C. L. REV. 85, 96-100 (1994).

69. Section 2(7) of Pub. L. No. 102-243 states:

Over half the States now have statutes restricting various uses of the telephone for marketing, but telemarketers can evade their prohibitions through interstate operation; therefore, Federal law is needed to control residential telemarketing practices.

70. See Report and Order, In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 7 F.C.C.R. 8752 (1992) [hereinafter Report and Order].

71. 47 C.F.R. § 64.1200(e)(2)(iv) (1994) (requiring telemarketer to provide to called party: (1) the name of caller; (2) name of entity for whom call was placed; and (3) contact telephone number or address).

72. 47 C.F.R. § 64.1200(e)(1) (1994) (stating that the hours are as measured by the local time at the called party's location).

73. 47 C.F.R. § 64.1200(e)(2)(iii) (1994).

74. See Memorandum Opinion and Order, supra note 58.

75. 47 U.S.C. § 227(c)(3).

76. See Report and Order, supra note 70.

77. 47 U.S.C. § 227 (b)(1)(B).

78. 47 U.S.C. § 227(b)(3).

79. 826 F. Supp. 360 (D. Ore. 1993), rev'd, 46 F.3d 970 (9th Cir. 1995).

80. Moser v. FCC, 46 F.3d 970 (9th Cir. 1995) [hereinafter Moser II].

81. Id. at 971.

82. Id. at 974-75.

83. Id. Interestingly, in Judge Fletcher's opinion in Destination Ventures, Ltd. v. FCC, 46 F.3d 54 (9th Cir. 1995), decided five days earlier, she is silent when reviewing the lower court's opinion which, in dicta, considered the ban on automated calls to be a content-based regulation. Destination Ventures, Ltd. v. FCC, 844 F. Supp. 632, 638 (D. Or. 1994).

84. See 47 U.S.C. § 227(b)(2). The FCC adopted regulations exempting automated calls made by tax-exempt, non-profit organizations. 47 C.F.R. § 64.1200(c)(4) (1995).

85. Moser II, 46 F.3d at 973.

86. See id. (stating that the standard of review in either case is "essentially identical").

87. Id. at 974-75.

88. Id. at 975.

89. Id. at 972.

90. Compare Lysaght v. New Jersey, 837 F. Supp. 646 (D.N.J. 1993) (invalidating New Jersey statute banning auto-dialed commercial solicitations as violation of First Amendment); Moser v. Frohnmayer, 845 P.2d 1284 (Or. 1993) (invalidating Oregon statute as violation of Oregon Constitution) with State v. Casino Mktg. Group, 491 N.W.2d 882 (Minn. 1992) (upholding Minnesota statute as consistent with both state and federal constitution), cert. denied sub nom. Hall v. Minnesota, 507 U.S. 1006 (1993).

91. See 47 U.S.C. § 227(e)(1); Van Bergen v. Minnesota, 59 F.3d 1541, 1547-48 (8th Cir. 1995).

92. See Gormley v. Director, Connecticut State Dep't of Adult Probation, 449 U.S. 1023, 1023-24 (1980) (White, J., dissenting from denial of certiorari) (seeking to review decision upholding state statute that provides misdemeanor sanctions for persons who have "intent to harass, annoy or alarm another person" when making a telephone call).

93. Destination Ventures, Ltd. v. FCC, 46 F.3d 54, 56 (9th Cir. 1995).

94. 47 U.S.C. § 227(b)(1)(C).

95. See Destination Ventures, 46 F.3d 54.

96. Id. at 56-57. See infra text accompanying notes 187-91 for a critique of this reasoning.

97. Id. at 56.

98. Id. at 57 ("The possibility of future technological advances allowing simultaneous transmission and eliminating the need for paper does not alter this conclusion. We look at the problem as it existed when Congress enacted the statute, rather than speculate upon what solutions may turn up in the future.").

99. Connecticut was the first state to pass a junk fax law. See Michael M. Parker, Fax Pas: Stopping the Junk Fax Mail Bandwagon, 71 OR. L. REV. 457, 462 & n.22 (1992).

The story behind passage of Connecticut's law is ironic. After passage by the legislature, Governor William O'Neill was uncertain about signing the legislation. Id. He was persuaded to sign the bill after receiving by fax hundreds of letters opposing the legislation. Id. Receipt of these faxes had tied up his office's machine and had precluded receipt of time-sensitive information from the state's Office of Emergency Management on possible flooding. Id. The Governor stated that being subjected to a lobbying campaign by fax had "brought home" the need for junk fax legislation. Id.

Interestingly, signing the bill could not constitutionally do anything to alleviate the problems created by the fax lobbying campaign. The law reached advertising by fax and thus-as a restriction on commercial speech-could survive intermediate judicial scrutiny. The statute is silent with respect to lobbying, which is political speech situated at the core of the First Amendment's protective reach. Any prohibition on lobbying by fax would have to survive strict judicial scrutiny, a burden the state would not likely be able to meet.

100. See CONN. GEN. STAT. ANN. § 52-570c (West 1991); FLA. STAT. ANN. § 365.1657 (West Supp. 1992); GA. CODE ANN. §§ 46-5-25, 46-1-1(3) (Harrison 1990); ILL. ANN. STAT. ch. 720, para. 26-3 (Smith-Hurd Supp. 1992); MD. COM. LAW II CODE ANN. § 14-1313 (Michie 1990); MICH. COMP. LAWS ANN. §§ 445.1771-.1776 (West Supp. 1992); NEB. REV. STAT. §§ 86-1209 (1987 & Supp. 1991); NEV. REV. STAT. § 207.325 (Supp. 1991); N.Y. GEN. BUS. LAW § 396-aa (McKinney Supp. 1992); OKLA. STAT. ANN. tit. 21, §§ 1862-1863 (West Supp. 1992); OR. REV. STAT. §§ 646.872, 646.608(ff), 646.632, 646.638, 646.642 (1991); R.I. GEN. LAWS §§ 11-35-27 (Supp. 1991); S.C. CODE ANN. §§ 15-75-50 (Law. Co-op. Supp. 1991); TENN. CODE ANN. §§ 47-18-1601 to -04 (Supp. 1991); TEX. BUS. & COM. CODE ANN. § 35.47 (West Supp. 1992); UTAH CODE ANN. §§ 13-25a-101 to -107 (Supp. 1991); VA. CODE ANN. § 8.01-40.2 (Michie 1992); W. VA. CODE § 46A-2-139 (1992).

101. 47 U.S.C. § 227(e)(1).

102. See Assembly Bill Would Stop Unwanted Faxes, CAPITAL, Feb. 5, 1996, at A1 (discussing bill introduced in Maryland assembly to regulate junk fax).

103. Board of Trustees v. Fox, 492 U.S. 469, 480 (1989).

104. Rowan v. United States Post Office, 397 U.S. 728, 736 (1970).

105. Project 80's, Inc. v. City of Pocatello, 942 F.2d 635, 639 (9th Cir. 1991).

106. Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 75 (1983).

107. Moser v. FCC, 46 F.3d 970, 975 (9th Cir. 1995).

108. Destination Ventures, Ltd. v. FCC, 46 F.3d 54, 56 (9th Cir. 1995).

109. Spam is both a noun describing electronic junk mail messages and a verb describing the act of indiscriminately sending electronic junk mail messages; one who sends electronic junk mail is known as a spammer. One electronic junk mailer, who dubs himself "Spam King," claims to send three to four electronic mass mailings per day. Daniel Akst, Postcard From Cyberspace, L.A. TIMES, Nov. 1, 1995, at D4.

110. According to one estimate, as many as 50 million people around the world have at least begun to use the Internet. Stephen McGookin, An Uncertain Feeling About the Internet, FINANCIAL TIMES, Sept. 27, 1995, at IX (book review section). In the United States, a recent survey places the number of homes with Internet access at 14.7 million. See Jared Sandberg, U.S. Households With Internet Access Doubled to 14.7 Million in Past Year, WALL ST. J., Oct. 21, 1996, at B11. The same survey found that nearly nine million adults access the World Wide Web daily. Id.

111. See, e.g., Coats, supra note 2, at D2; Jeff Pelline, Junk Mail Proliferating on Internet; Boon for Advertisers, But Users Fret About Privacy, S.F. CHRON., Nov. 2, 1995, at A1; John Schwartz, It's the Spam You Read That's Making Many Interneters Queasy, WASH. POST, Nov. 20, 1995, at F17.

112. The problem was recognized early in the development of electronic mail. See John Seaman, Is Electronic Junk Mail Good for Users?, COMPUTER DECISIONS, June 1, 1983, at 74 (discussing the problem of frivolous electronic mail on internal corporate computer networks). However, the need for a solution is only now becoming more urgent. Because electronic addresses are easy to identify and the costs of overhead for electronic advertising are minimal, "[t]he Internet could literally be buried in a flurry of electronic junk mail." Linda Himelstein, Law and Order in Cyberspace?, BUS. WK., Dec. 4, 1995, at 44 (quoting Marc Rotenberg, director of the Electronic Privacy Information Center).

113. "[A]ssuming that the relatively petty irritations and junk mail can be worked out, the advent of commerce on the network only underscores a larger question: Who, precisely, is going to control this new Internet?" Waldrop M. Mitchell, Culture Shock on the Networks, 265 SCIENCE 5174, 879.

114. See Richard Zaitlen & David Victor, The New Internet Domain Name Guidelines: Still Winner-Take-All, 13 No. 5 COMPUTER LAW. 12, 13 (1996) (providing a succinct description of the Internet's development).

115. Many online service providers now post a statement of recommended online etiquette. A very general statement of some of the norms can be found in FAQs (Frequently Asked Questions), TIME, July 25, 1994, at 50 [hereinafter FAQs].

116. See Cass R. Sunstein, The First Amendment in Cyberspace, 104 YALE L.J. 1757, 1758-59 & nn.6-7 (1995) (describing norms and constraints of communication by electronic mail as "a form of customary law, determining how and when people communicate with one another"); see generally ROBERT C. ELLICKSON, ORDER WITHOUT LAW (1991) (describing how cultural norms can operate like legal constraints in absence of formal law).

117. Mitchell, supra note 113, at 879.

118. As discussed supra part I.2.a, the cultural norm in the physical world is to temper a strong distaste for paper junk mail with an acceptance of junk mail as an inevitable reality. Attempts by newcomers to extend this norm to cyberspace have been resisted by the early inhabitants of cyberspace, who cling to the competing norm of treating the Internet as a commercial-free zone.

119. This principle is reflected in rules on keeping communications succinct and to the point; rules on sticking to the subject of a discussion group; and a prohibition on needless communications concurring with statements by others. FAQs, supra note 115, at 50.

120. See Mitchell, supra note 114, at 879.

121. See id. ("[T]he unwritten rules . . . tell users not to waste other people's time with irrelevant electronic chatter-and especially, not to sully the network with self-serving advertisements and junk mail.").

122. See, e.g., Kristen Baird, Local Net Providers Feud Over Netiquette, CRAIN'S CLEV. BUS., June 12, 1995, at 3 (quoting local junk mailer who publicly apologized for spamming but also said, "We realize this is a big cultural issue . . . [b]ut I think we would consider another bulk e-mail if we felt it was appropriate."); Rosalind Resnick, Tread Lightly on the Internet, HOME OFF. COMPUTING, April 1994, at 80 (advising marketers to be judicious when choosing targets for junk mail).

123. See infra part III.A.2 on spammer blacklists.

124. See Steven Carlson, How To Keep "Spam" From Clogging E-mail, BUDAPEST BUS. J., Dec. 4, 1995, at 30 (referring to one online vigilante who is dedicated to thwarting the efforts of the "Spam King," see supra note 110).

125. See id. With "exquisite chutzpah," a company used spam to sell potential vigilantes an antidote to spam-The Spammer Slammer-a program that enables potential vigilantes to generate thousands of messages to be sent to the source of undesired email. Thomas Petzinger, Jr., A Morality Tale From the Wild World of the Internet, WALL ST. J., Nov. 1, 1996, at B1.

126. See Carlson, supra note 124, at 30.

127. Cynthia Flash, A Breach of "Netiquette"; Junk E-mail Outrages Computer Users, NEWS TRIB., Jan. 7, 1996, at A1 (describing vigilante attacks on one small-scale Internet service provider because it failed to stop spammer from spamming members).

128. Jean Heller, Junk Mail Creates Computer Headache, ST. PETERSBURG TIMES, Jan. 2, 1996, at A1 (describing a company blacklisted for allegedly marketing a T-shirt that it never made).

129. Commentators have recognized the increasing prevalence of structural regulation by contract, and they are split on its desirability. Compare Mark A. Lemley, Shrinkwraps in Cyberspace, 35 JURIMETRICS J. 311, 321 (1995):

But this new law of the Internet would be unlike any form of legislation known to modern society. No one elected its drafters or the Internet providers who adopted it. They are accountable to no one. . . . Nor is there any provision for "opting out" of this new social contract, other than by withdrawing from cyberspace. . . . It would be a sheer accident if the model code drafted (presumably) by the Internet providers themselves . . . happened to be the optimal means of regulating behavior in cyberspace.

 with David R. Johnson & Kevin A. Marks, 38 VILL. L. REV. 487, 515 (1993):

Cyberspace is, and should be, ruled mostly by contract. The highest duty of any sysop [system operator] is to be thoughtful and truthful regarding applicable ground rules. . . . The best policy, from a social perspective, is to let the new medium develop free of the shackles imposed by any particular, soon-to-be outmoded, legal metaphor.

130. E.g., No Spamming for MCI Under New Policy, INVESTOR'S DAILY, Jan. 23, 1996, at A8 (quoting MCI official, "We reserve the right to automatically disconnect and deny access to any MCI customer who violates this spamming policy . . . .").

131. America Online (AOL) adopted its filtering policy in response to subscriber complaints about the increase in spam received, amounting to 15 million pieces each week. See Jared Sandberg, America Online Sets Cyberspace Barriers Against Junk E-mail, WALL ST. J., Sept. 5, 1996, at B4 (reporting that AOL's view is that even with this policy "the government may have to intervene with regulations"). Even before adopting its policy, AOL was sued by Cyber Promotions, a Philadelphia junk mailing company, for tortious interference with contract. Trial is set for November 1996. Id. The head of Cyber Promotions, Sanford Wallace, is also known as the "Spam King." Jana Sanchez-Klein, Meet the most HATED MAN on the INTERNET, BALTIMORE SUN, May 28, 1996, at 1D; see supra note 111.

Almost immediately after the filtering policy went into effect, Cyber Promotions, which sends one to two mass mailings a day to 1.3 million Internet addresses, 75% of which are at aol.com, filed a separate suit against AOL. See David S. Hilzenrath, AOL Ordered to Stop Blocking Junk E-mail, WASH. POST, Sept. 7, 1996, at D1. The plaintiff won a preliminary injunction against the AOL policy in U.S. district court in Philadelphia. Id. But the Third Circuit swiftly reversed the ruling. Thomas E. Weber, America Online Wins Rounds in Suits Over Junk E-mail and Billing Practices, WALL ST. J., Sept. 23, 1996, at B6.

132. See David Post, The Case of Virtual Junk Mail, AM. LAW., Nov. 1996, at 97, 98 ("But if many Internet service providers implement a similar prohibition [against sending electronic junk mail], and if those service providers flourish and attract many subscribers . . . who has the right to say . . . that that isn't the best rule to deal with this problem?").

133. It is difficult but not impossible. See Tim Blangger, You Can Shut Off Unsolicited E-mail, MORNING CALL (Allentown, Pa.), Feb. 6, 1996, at D1 (describing process for identifying source of electronic mail message).

134. Concentric Network Corp. v. Wallace, No. 96-CV-20829 (N.D. Cal. filed Oct. 2, 1996). Defendant Sanford Wallace, head of Cyber Promotions, Inc., agreed to cease the behavior in response to the plaintiff's motion for a temporary restraining order. 1 Electronic Info. Pol'y & L. Rep. (BNA) 672 (Oct. 18, 1996). The plaintiff is an Internet service provider. In addition to claiming that Cyber Promotions had violated the terms of its service agreement, the plaintiff also claimed violations of three federal statutes-the Electronic Communications Privacy Act, 18 U.S.C. §§ 2701 et seq., the Computer Fraud and Abuse Act, 18 U.S.C. § 1030(a)(5)(A)(i), and the Lanham Act, 17 U.S.C. § 1125(a)-as well as a number of common law tort causes of action. Id. at 673-74.

135. See FIN. POST, October 26, 1996, at C12.

136. See Stephen Lynch, Junk Mail Heads Your Way Online, NEW ORLEANS TIMES-PICAYUNE, Jan. 13, 1996, at C1. Three of the largest service providers-Compuserve, Prodigy and America Online-sell the personal data of all subscribers who have not expressly indicated that they do not want their data sold. Id.

137. America Online "is no stranger to direct marketing: It bombards members with its own online sales pitches while the meter is ticking . . . ." Hilzenrath, supra note 131, at D2.

138. First, there would have to be an industry-wide agreement to include in all ISP service agreements a term prohibiting spamming. Otherwise, those ISPs that allow spamming would become magnets for electronic junk mailers. Second, some form of coordinated enforcement would be necessary, such as a blacklist of all those who have had their access terminated for violation of the spamming prohibition. Otherwise, spammers could simply open an account with a different ISP if their current account were terminated.

139. See Brett Glass, Server With Internet Link Will Help You Filter Unwanted Mail, INFOWORLD, Dec. 18, 1995, at 41 (describing one successful method of filtering); Diana Hwang, App to Help VARs Curb Net Mail, COMPUTER RESELLER NEWS, Feb. 5, 1996, at 24.

140. See supra text accompanying notes 6-9.

141. For example, the Federal Trade Commission devoted one of a series of hearings on regulating unfair business practices on the Internet to the junk mail problem. November 20, 1995. In addition, the Clinton Administration has advised providers of telecommunications services to get consumers' permission before using or selling information about their customers. See Regulators/Regulations: Recommendations for Telecom Privacy, DOT.COM, Nov. 1, 1995 (citing a Commerce Department report providing "recommendations" to the industry). Should the industry ignore the Administration's advice, formal regulations may follow. Id.

142. 47 U.S.C. § 227(b)(1)(C) (emphasis added).

143. 47 U.S.C. § 227(a)(4).

144. 47 U.S.C. § 227(a)(2).

145. Memorandum Opinion and Order, supra note 58, at 12405-06.

146. See Destination Ventures, Ltd. v. FCC, 46 F.3d 54 (9th Cir. 1995) (relying on district court's use of legislative history and fact that junk fax universally involves unfair cost-shifting to uphold TCPA's ban on unsolicited fax advertising), aff'g 844 F. Supp. 632 (D. Or. 1994).

147. Id.

148. Edenfield v. Fane, 507 U.S. 761, 770 (1993).

149. See Michael D. McConathy, Destination Ventures, Ltd. v. FCC and Moser v. FCC.: How Much Should the Telephone Consumer Protection Act Restrict Your Phone, Fax and Computer?, 26 GOLDEN GATE U. L. REV. 153, 180-81 (1996) (implicitly concluding that TCPA does not ban solicitation by electronic mail).

150. See generally Jerry Berman & Daniel J. Weitzner, Abundance and User Control: Renewing the Democratic Heart of the First Amendment in the Age of Interactive Media, 104 YALE L.J. 1619 (1995) (discussing advantages of open architecture in promoting First Amendment goals of viewpoint diversity and increased user control).

151. In Red Lion Broadcasting Co. v. FCC, the Supreme Court adopted a scarcity rationale to uphold the FCC's fairness doctrine-content-based regulation of political speech by broadcasters. 395 U.S. 367, 386-89, 400-01 (1969). With respect to other, less scarce media, application of a functional equivalent of the fairness doctrine was held unconstitutional. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974). The Court has recognized criticism of the Red Lion decision, but for the moment it continues to read the First Amendment to mean that the scarcity of the broadcast medium entitles the government to more extensive regulation. See Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622, 114 S. Ct. 2445, 2456-57 (1994).

152. See Bart Ziegler & Jared Sandberg, AOL Wants to Be Viewed Like a Cable-TV Company, WALL ST. J., Oct. 31, 1996, at B4 (describing a new corporate strategy that would allow America Online to compete more effectively as an Internet service provider); see also G. Christian Hill, U.S. West Media, Microsoft Buy VDOnet Stake, WALL ST. J., Oct. 28, 1996, at A11B (describing investment in company that has developed technology "that squeezes video and voice over the narrow pipes of the Internet and its graphical layer, the World Wide Web").

153. See Don Clark, Microsoft Unveils an Online Overhaul With TV-Style Structure on Network, WALL ST. J., Oct. 11, 1996, at B5 (describing television-like attributes of Microsoft Network).

154. Software now on the market allows users to describe categories of information that they wish to have transmitted to, or retrieved by, their computers from specific Web sites at regular intervals. Jared Sandberg & Don Clark, Two Start-Up Firms Unveil Software to 'Push' Information on the Internet, WALL ST. J., Oct. 7, 1996, at B9 (describing software that not only sends updated information to computers but to pagers as well).

155. See Walter S. Mossberg, Now Even Home PCs Can Get Web News, Data Automatically, WALL ST. J., Oct. 10, 1996, at B1 (describing two products that provide this service and their respective limitations, including limited ability to customize the filters for incoming information).

156. See Patrick M. Reilly, New WebTV Has Sony, Philips Racing to Snatch Holiday Sales, WALL ST. J., Oct. 25, 1996, at B8 (describing efforts to market a new, relatively inexpensive device that allows navigation of the World Wide Web with a remote control and a television set); Walter S. Mossberg, Now You Can Watch Another New TV Show, But It's No Sitcom, WALL ST. J., Sept. 19, 1996, at B1 (describing the new technology and reporting on how it differs from navigating the Web with a personal computer).

157. Presentations of events that we may want to observe as they happen may be the last vestige of mass media as we know it because, as a general rule, we will no longer consume our cultural products on a uniform timetable. One person may choose to survey the news at 9:26 p.m. while another waits until 10:34 p.m. Some may want to skip the sports and lifestyle stories while others may only want the sports and weather. With video-on-demand, consumers will be able to watch movies and entertainment programs on their own schedule. This may mean that we are not watching exactly the same movies or shows. See infra notes 164-66 and accompanying text for a discussion of "modular" programming.

158. A number of companies already are marketing "mass customized" advertising for the Internet. See Amy N. Lipton & Jennifer S. Taub, Real World Examples of Successful Electronic Commerce, 452 PLI/PAT 405, 416-17 (1996) (citing examples).

159. The range of these presentations is virtually limitless. Non-entertainment performances might include such things as an opinion piece on an issue of public importance. This piece might be presented in text, in video, or in some combination thereof. Entertainment performances could include a multiplayer video game, a music/video/text performance of original composition, or a music/video/text compilation of existing compositions.

For example, imagine a group of friends who share an interest in popular music. As time has gone by, other music lovers have joined the group. To enjoy their favorite music better, group members compose multimedia presentations to accompany their favorite songs. These multimedia presentations consist of compilations of new and old scanned images, movies, and text.

160. In the music video example, see supra note 142, a group member may need to pay for intellectual property rights to compile such a performance.

161. How important the directionality of communication will be to the scope of permissible government regulation remains unclear. Communications that are perceived to radiate out into people's "private" spheres may be subject to greater regulation on the ground that the communicator's speech rights have to be balanced against the recipient's privacy rights. See FCC v. Pacifica Found., 438 U.S. 726, 748-50 (1978) (allowing regulation of indecent broadcasting on ground that pervasiveness of medium reduces parents' ability to guard against minor hearing indecent programming). Some cases appear to disregard the importance of directionality. "Pervasiveness" may simply mean readily available. See Information Providers' Coalition v. FCC, 928 F.2d 866, 873 (9th Cir. 1991) (upholding parents' right to block access to "1-900" telephone numbers).

162. This phrase will likely come to mean "produced for a mass audience." Rather than the provider sending a broadcast signal in numerous directions, the program itself will be capable of being copied millions of times in a very short period and will be available for retrieval by consumers.

163. What nomenclature will develop for clips of information in the unified medium remains to be seen. Here a "program" could be a video entertainment show, but it also could be the newspaper, a cookbook, etc.

164. For example, viewers could choose between a happy and sad ending or between light and dark comedy.

165. This does not seem to be such an outlandish assumption. Movies and television shows already are filmed scene-by-scene with no regard to sequence. So long as the marginal cost of producing additional scenes is less than the marginal revenue produced by giving consumers their choice of version, we would expect to see modular programming.

166. This assumes that advertising will still be attached to programming. All programming might instead be financed on a pay-per-view basis, but the incentives for programmers to sell advertising space in their programs are likely to be greater than the benefits of providing commercial-free programming.

An unscientific survey of 409 online users, conducted by a marketing magazine, provides some further support for the proposition that people would accept advertising in exchange for lower costs in receiving programs. Online Users Survey Results: Electronic Junk Mail-No; Bribes-Maybe, INTERACTIVE FACTS, June 6, 1994. The survey found that only 28% of respondents thought junk mail should be allowed on commercial online services, but 54% would accept junk mail in their boxes in exchange for free online hours or other financial incentive or rebate. Id.

167. See Rosenfield, supra note 3, at 82.

168. See Himelstein, supra note 112, at 44 (discussing concerns over junk mail glut on Internet).

169. A "tragedy of the commons" occurs when users of a common asset or public good act in their rational self-interest to derive as many personal benefits as possible from the asset-a process that results in the depletion of the asset, leaving all involved in a worse position than they would have been had use of the asset been regulated to preserve it. See generally Garrett Hardin, A Tragedy of the Commons, 162 SCIENCE 1243 (1968). In this case, the tragedy would arise because advertisers' returns on junk mailing would drop so low that even with the minimal marginal costs, no net value will be derived from the advertising efforts.

In the popular press, discussions of junk mail on the Internet occasionally reference the problem of the commons. Referring to the Spam King, one article placed this junk mailer's activities in the "great American tradition of profit from abuse of the commons." Akst, supra note 109, at D4; see also Howard Rheingold, Selfish Interests Spoil the Net, DENVER POST, Jan. 27, 1995, at 23 (describing junk mail as tragedy of the commons analogous to overgrazing of land).

170. For example, in June 1996, the direct marketing community announced proposed self-regulation in response to a workshop on consumer privacy conducted by the Federal Trade Commission. Lipton & Taub, supra note 158, at 424-25. The Direct Marketing Association and the Interactive Services Association issued joint statements on "Principles for Unsolicited Marketing E-mail" and a "Draft Online Notice and Opt-Out Principle." Id. at 447-48 (providing full text of both statements). Arguably, then, self-regulation in the face of potential government regulation is actually effective. In the first document, the industry agreed to the "principle" that "[o]nline solicitations should be clearly identified as solicitations and should disclose the marketer's identity." Id. at 447. But query whether the industry would so readily agree if an enforcement mechanism were in place.

171. See, e.g., Joanne Pransky, Robots: Our Future Information Intermediaries, INFO. TECH. & LIBR., Dec. 1995, at 257 (describing need for and availability of information filters to "manage e-mail, handle phone calls, and read and organize your junk mail.").

172. For example, the statute at issue in Rowan provides individuals with an opt-out filter for junk mail by allowing them to inform the Postmaster not to deliver materials sent by selected mailers. Rowan v. United States Post Office, 397 U.S. 728, 730 (1970). Similarly, regulations promulgated pursuant to the Telephone Consumer Protection Act provide individuals with an opt-out filter by requiring callers to maintain lists of those who have requested that they not be called again. See 47 C.F.R. § 64.1200(e)(2)(iii) (1995).

173. An unlisted telephone number is effectively an opt-in filter. A person with an unlisted number will receive no telephone calls-except for calls generated by random digit dialing and misdialed calls-until that person gives her telephone number to people she selects. Some evidence suggests that people choose to have unlisted phone numbers precisely to filter out junk phone calls. See Nadel, supra note 9, at 100 & n.13 ("Many of the estimated 13.9% of consumers with unlisted telephone numbers [1981-82 figures] may have sought that refuge to protect themselves from [unsolicited junk] calls.").

174. This certainly is the current practice among numerous (paper) junk mailers. All of us commonly find mail advertisements masquerading as prize announcements, checks, governmental communications (brown paper), etc.

175. Such a regulation may actually exacerbate the junk mail problem, because greater information enables advertisers to limit their "mailing" to those who would have some likelihood of responding positively. Without that information and with low marginal costs, advertisers will resort to the blunderbuss approach and send their messages to everyone.

176. See generally Sunstein, supra note 117; Laurence H. Tribe, The Constitution in Cyberspace: Law and Liberty Beyond the Electronic Frontier, Keynote Address at the First Conference on Computers, Freedom & Privacy (Mar. 26, 1991) (transcript available at http://www.cpsr.org/dox/conferences/cfp91/tribe.html).

177. See, e.g., Sunstein, supra note 117; M. Ethan Katsh, Rights, Camera, Action: Cyberspatial Settings and the First Amendment, 104 YALE L.J. 1681 (1995); Fred H. Cate, The First Amendment and the National Information Infrastructure, 30 WAKE FOREST L. REV. 1 (1995); Joel R. Reidenberg & Francoise Gamet-Pol, The Fundamental Role of Privacy and Confidence in the Network, 30 WAKE FOREST L. REV. 105 (1995); David J. Goldstone, The Public Forum Doctrine in the Age of the Information Superhighway (Where Are the Public Forums on the Information Superhighway?), 46 HASTINGS L.J. 335 (1995).

178. See generally Jerry Berman & Daniel J. Weitzner, Abundance and User Control: Renewing the Democratic Heart of the First Amendment in the Age of Interactive Media, 104 YALE L.J. 1619 (1995).

179. In the commercial speech context, whether a regulation is content-based or is a content-neutral time, place and manner restriction has little functional impact because the constitutional test is the same. Board of Trustees of the State Univ. of N.Y. v. Fox, 492 U.S. 469, 477 (1989).

For an analysis of a labeling requirement for violent television shows via a ratings system, see Harry T. Edwards & Mitchell N. Berman, Regulating Violence on Television, 89 NW. U. L. REV. 1487 (1995) (discussing the likely collapse of the cable/broadcast distinction for First Amendment purposes and the permissible range for government regulation of violent programming, including use of the V-chip).

180. See supra part I.A. (discussing Central Hudson/Fox test for commercial speech regulation).

181. See supra parts I.A-C.

182. For example, in Carey v. Brown, 447 U.S. 455, 471 (1980), the Court asserted that "[t]he State's interest in protecting the well-being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society," and in Frisby v. Schultz, 487 U.S. 474, 484-85 (1988), the Court stated that "a special benefit of the privacy all citizens enjoy within their own walls, which the State may legislate to protect, is an ability to avoid intrusions."

183. Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 75 (1983).

184. See supra part I.B.2.c.

185. John Seabrook, Home on the Net, NEW YORKER, Oct. 16, 1995, at 66 (describing the author's experience in designing his Home Page on the World Wide Web).

186. See, e.g., Goldstone, supra note 177; Reidenberg & Gamet-Pol, supra note 177; see also Andrew Jay McClurg, Bringing Privacy Law Out of the Closet: A Tort Theory of Liability for Intrusions in Public Places, 73 N.C. L. REV. 989 (1995).

187. In the current environment, Internet service providers appear to be moving away from time-based access charges. "America Online, bowing to the inevitable, is expected to announce today that it will offer customers flat-fee pricing for unlimited access to the Internet in a bid to stay competitive with the fast-moving industry." Jared Sandberg, America Online To Unveil Flat Fee for Internet Access, WALL ST. J., Oct. 29, 1996, at B5.

188. See Destination Ventures, Ltd. v. FCC, 46 F.3d 54, 56 (9th Cir. 1995) (upholding statutory ban on unsolicited fax advertising as permissible regulation).

189. This greater-includes-the-lesser justification for regulation of speech has its limits. Government may regulate underinclusively so long as that regulation does not amount to viewpoint discrimination or content discrimination. R.A.V. v. St. Paul, 505 U.S. 377, 387 (1992). A labeling requirement remains viewpoint-neutral because all commercial speech would be subject to such labeling.

190. Edenfield v. Fane, 507 U.S. 761, 770 (1993).

191. See Destination Ventures, Ltd. v. FCC, 844 F. Supp. 632, 635-37 (D. Or. 1994) (citing liberally from congressional hearings in support of the TCPA), aff'd, 46 F.3d 54 (9th Cir. 1995) (stating that parties concede substantiality of state interest in preventing cost-shifting).

192. These costs are, for example, the time it takes to sort through junk mail or listen to a telephone solicitor. Additionally, psychic costs are also imposed, such as the frustration caused by receipt of unwanted solicitations.

193. See supra note 1.

194. See supra part II.A.

195. See, e.g., Chesapeake & Potomac Tel. Co. v. United States, 830 F. Supp. 909 (E.D. Va. 1993) (declaring unconstitutional the cross-ownership ban on telephone companies' owning video programmers (47 U.S.C. § 533(b)) because such "structural" economic regulation still disproportionately impacts entities engaged in protected speech), aff'd, 42 F.3d 181 (4th Cir. 1994), vacated, 116 S. Ct. 1036 (1996) (remanded to Fourth Circuit on question of mootness).

196. Board of Trustees of the State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989).

197. City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 417-18 (1993) (invalidating city ordinance as impermissible underinclusive regulation of commercial speech because it banned from the public streets only newsracks belonging to commercial handbill distributors but not newsracks belonging to newspapers).

198. Advertising via Web pages appears to be increasing. Bart Ziegler, NetCount Seeks to Tally Users of Web Ads, WALL ST. J., Oct. 11, 1996, at B17.

199. Note that courts have not yet been willing to grant such a property right in personal information. See supra note 43 (discussing suit by Virginia man asserting property right in personal data under state right-of-publicity statute).

200. One commentator concludes that recognition of a property right in personal information would not be a solution because, although it would shift some costs to advertisers by requiring them to pay for the right to send junk mail, it would shift significantly greater transaction costs to consumers. See A. Michael Froomkin, Flood Control on the Information Ocean: Living With Anonymity, Digital Cash, and Distributed Databases, 15 J.L. & COM. 395, 492-93 (1996).

201. See supra notes 43-44 and accompanying text.

202. Already, some versions of Web browsers like Netscape Navigator include access to the "Internet White Pages." In addition, users can visit http://www.four11.com (Four11) or http://www.whowhere.com (WhoWhere) to find Internet addresses.

203. See Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 75 (1983).

204. See Project 80's, Inc. v. City of Pocatello, 942 F.2d 635, 639 (9th Cir. 1991).

205. See Destination Ventures, Ltd. v. FCC, 46 F.3d 54, 56 (9th Cir. 1995).

206. See supra part III.A.2.

207. Bolger, 463 U.S. at 72.

208. See supra part II.A. (explaining why message preclusion is not a problem in the Internet context).

209. See Moser v. FCC, 46 F.3d 970, 973 (9th Cir. 1995).

210. See supra part II.B.

211. See supra part I.A.