CNN LIVE SATURDAY
Interview with John Palfrey
Aired September 27, 2003 - 12:37 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
JUDY FORTIN, CNN ANCHOR: To something equally as distressing to many, they hawk everything from super low mortgage rates to a better sex life. And clog your e-mail like electronic cholesterol. California's tough new anti-spam law goes into effect January 1. Spammers could face fines up to $1 million for each mass mailing. But will it do any good. And what about free speech court challenges?
John Palfrey, is director of the Berkman Center for Internet and Society at the Harvard Law School. He is in our Boston Bureau today. Thank you so much for joining us. A lot of questions for you today. Let's start out by talking about the California new anti-spam law.
Is it legal and are you expecting to see any court challenges against it?
JOHN PALFREY, HARVARD LAW SCHOOL: Sure, Judy, thank you very much for having me and the short answer is yes I would be very surprised if there weren't court challenges against the California law. It's a very tough, very broad law. And I'm fairly certain there will be a challenged before it goes into effect in January. I think it will face challenges on two fronts, at least one on free speech grounds much like the "Do Not Call" list faced in Colorado and secondary in terms of a commerce clause challenge which is to say on the grounds that it's restricting interstate commerce in a way that the state shouldn't be doing.
FORTIN: Well, 36 states already have legislation and the problem is still there.
What is the problem with that then?
Why is noise not working?
Why can't the laws be enforced?
PALFREY: It's a great question. I'm afraid to say the spam problem is perhaps the hardest thing facing the Internet today as a legal matter. I don't think any of these laws are likely to make it go on their own. I don't think any state laws is likely to be effective. It's going to be a combination of law and technology that gets it done. One huge problem is most of the spam comes from overseas we get at this point and therefore you the both the jurisdictional and enforcement problem in terms of getting to the problem source.
FORTIN: Who's against the law and why?
And what are they doing about it?
PALFREY: So the direct marketing association and its colleagues, people who are interested in advertising using the Internet are opposed to these laws. And there are a series of smaller businesses who use the Internet as a way to reach out to potential customers, not existing customers. And they are very often opposed to this kind of legislation.
FORTIN: Some of what you're saying sounds familiar when we were talking about "Dot Not Call" list. What does the anti-spam law have anything to do with the "Do Not Call" list, if anything?
Is there anything on common ground.
PALFREY: Sure. There's a useful analogy. Not a precise analogy, not a precise analogy, but useful. In one sense the problem with the "Do Not Call" list that the Colorado judge found which was that the law was not a content neutral law, so it distinguished between different kinds of speech, is a problem that will face the spam laws as well, particularly California one which is written very broadly and will get most commercial speech, but might allow political and charitable speech which was the problem at the "Do Not Call" list.
They are different, though, the sense that the California law is a state law as opposed to the "Do Not Call" list at the federal level. There are state "Do Not Call" lists, of course. But in the state law for the spam legislation, that may well face also this commerce clause challenge. So in that way they're a little different.
FORTIN: Those of us who spend a lot of time online should we remain cynical and realize that we're probably just going to have to live with spam or are you optimistic there may be some law that will deal with this problem.
PALFREY: It's fair to say I am not that optimistic about a law being able to solve it. But a combination what Lawrence Lester (ph) of East Coast code or legislation and West Coast code which is the code that programmers write maybe some day will help us solve the problem.
FORTIN: John Palfrey, executive director of the Berkman Center for Internet and Society. Thank you so much for your time today. Nice talking to you.
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