COMPARATIVE ANALYSIS ON SPAM LAWS FROM CONSTITUTIONAL PERSPECTIVE: U.S. CAN-SPAM ACT AND SOUTH KOREA PICNUIP - SHOULD SOUTH KOREA SWITCH BACK TO OPT-OUT?

As Fair Trade Commission (“FTC”) Chairman Timothy J. Muris has remarked, “the magic of email is that you can email almost anyone. The tragedy is that almost anyone can email you.” Email, a dominant way of communicating for both personal and business purposes, has already replaced phone, fax and other traditional mail system. Email, like other methods of communication, enhances and reinforces the freedom of speech and furthers free exchange of information and ideas which is one of the quintessential values in a democratic society. However, the prevalence of unsolicited email has continuously become a significant problem for the internet service providers and users in general and there has been a vigorous effort to bring an end to this spam era worldwide. U.S. Congress enacted CAN-SPAM Act in 2003 and South Korea issued its very first anti-spam law in 1999, Act on the Promotion of Information and Communications Network Utilization and Information Protection (“PICNUIP”) and initially adopted an opt-out policy. However, recently in 2014, South Korea revised its anti-spam law from opt-out to opt-in. Through comparative analysis, I would like to suggest that South Korea revisit the spam act and consider switching the system back from opt-in to opt-out. Part I of the thesis delineates the history of CAN-SPAM Act legislation and prior bifurcated state laws on spam regulation. Part II looks at the details of PICNUIP by examining both past regulation and recently changed opt-in policy. PART III analyzes spam receiver’s constitutional right to privacy and their standing to sue by looking at the U.S. and South Korea’s legal system and their representative precedents. Part IV compares and contrasts the constitutionality of the U.S. and South Korea spam laws in regard to the freedom of commercial speech and regulation of spam emails. Finally, Part V explores the validity of South Korea’s recently adopted opt-in policy and argue that there are ‘alternative means’ to achieve the government interests rather than simply refraining the commercial advertisers from sending emails in the first place.