TPP has come under fire for a lot of reasons. Some believe it’s a raw deal for American workers. Others believe it confers too much authority to the executive. But until now, few have criticized one of its most damning characteristic: its assault on free speech.
The final text of the TPP’s section on electronic commerce has a section focused on unsolicited emails . The text defines unsolicited commercial messages as such:
means an electronic message which is sent for commercial or marketing purposes to an electronic address, without the consent of the recipient or despite the explicit rejection of the recipient, through an Internet access service supplier or, to the extent provided for under the laws and regulations of each Party, other telecommunications service.
The section governing them reads:
Unsolicited Commercial Electronic Messages
1. Each Party shall adopt or maintain measures regarding unsolicited commercial electronic
messages that:
(a) require suppliers of unsolicited commercial electronic messages to facilitate the ability of recipients to prevent ongoing reception of those messages;
(b) require the consent, as specified according to the laws and regulations of each Party, of recipients to receive commercial electronic messages; or
(c) otherwise provide for the minimisation of unsolicited commercial electronic messages.
2. Each Party shall provide recourse against suppliers of unsolicited commercial electronic messages that do not comply with the measures adopted or maintained pursuant to paragraph 1.
3. The Parties shall endeavour to cooperate in appropriate cases of mutual concern regarding the regulation of unsolicited commercial electronic messages.
The language here is not all that different from the CAN-SPAM Act, the American law governing unsolicited emails. But there’s a key difference: the CAN SPAM Act exempts political emails from consideration. TPP doesn’t.
The reason CAN SPAM exempts political communications is simple. Courts in the United States have routinely upheld the right to canvass for political and religious purposes, even in the face of angry citizens who abhor solicitation. The FEC acknowledges that speech of this kind serves a higher purpose than making a profit, and offered the proper exemptions. Even if they hadn’t, it wouldn’t matter. Courts have recognized almost uniformly that restrictions on speech, wheher it be political or religious, places an undue burden on our ability to engage in the sort of political activity that is the foundation of our democracy. Attempts to regulate pamphleting, or door to door religious canvassing, and any variety of other political activities have been struck down.
In a lot of ways, political emails represent the newest iteration of the sort of canvassing our Founders engaged in. Myriad organizations engage in outreach that raises political awarenss on the issues they care about. This is the sort of speech worthy of the highest protection, and it’s why government has avoided challenging it in recent years.
TPP makes no such exemptions. It refers only to “commercial and marketing” communications in a way that’s vague enough to include virtually any unsolicited communication. This could very easily be read to include virtually all unsolicited emails, including the political. This is the sort of email used by the same grassroots organizations that the Obama Administration that were once a target of the IRS. Through TPP, it appears the government has foudn another means. By failing to carve out relevant exemptions consistent with our constitution, Obama may have sold free political speech up the river.
AAN Staff
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