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From Knowmore.org

by Michael Worsham Virtually every U.S. citizen is effected by an endless stream of unwanted advertising -"junk" mail - delivered by the United States Postal Service (USPS). Junk mail can be defined as unsolicited promotional mail that is unwanted.(1) Junk mail is most often, but not always, third class mail sent via bulk rates. This article details some of the known environmental impacts of junk mail. The article also discusses several legal issues concerning junk mail, focusing on privacy and fairness. Finally, areas of study to investigate which could hopefully solve the problem are proposed.

Environmental Effects of Junk Mail The environmental impact of junk mail is substantial. In 1991, 62 million trees were cut for junk mail. Over 74,000 acres of trees were cut just for catalogs. In 1989, 63.7 billion pieces were sent, including 55 billion catalogs. This represents 7.4 billion pounds of junk mail. Pulp processing to produce paper for junk mail requires 25 billion gallons of water.(1)

Individually, an average of 41 pounds are sent to every adult. About 44 percent goes unread directly into the garbage(2) and 93 percent of junk mail will be discarded ultimately. Americans spend over $275 million to dispose of junk mail.(1) In one year a New York University marketing professor received 601 catalogs, including 26 catalogs from American Express and 24 catalogs from L.L. Bean.(3)

Junk mail is not very recyclable. In 1990, only 200,000 tons out of 3.8 million tons of junk mail were recycled.(3) Workers at a N.J. mill must sort from junk mail all the "shampoo samples, watches, T-shirts, tea bags and other surprises that don't make good paper." Heavy metals in colored inks do not degrade and eventually re-enter the environment. The Direct Marketing Association (DMA) claims trees are renewable, and argues "We see the real issue as landfills."(3) Junk mail is an estimated two percent of municipal solid waste.(3)

There is an environmental impact simply mailing all this mail around, primarily via motor vehicles. Mail trucks operate inefficiently, making constant starts and stops. After delivery, junk mail must still make at least one more trip to either a landfill, incinerator, or recycling center.

The environmental impact of ceaseless advertising of consumer products is the creation of a materialistic culture in which possession of consumer goods replaces human social interactions and spiritual development. There is no end to this materialistic spiral. People who define themselves by what they own will always desire that one new product, or replacements for all their old products, placing a continual demand on the environment. This materialism isolates people from each other, leaving them to entertain themselves with their "things," rather than engaging in constructive community-building.

Junk Mail as a Privacy Issue Privacy is a major concern, even to the average person. By July 1992, almost 2.5 million people had requested the DMA's Mail Preference Service, which removes a persons name from many national direct mail lists.4 In May 1990, when the New York Telephone Co. asked 6.3 million people if they wanted their names removed from a list that it intended to rent, some 800,000 responded affirmatively.(4)

People pay extra for unlisted phone numbers. Half of the residential telephone numbers in California are unlisted.(4) Objections to telephone solicitations led to passage of the Telephone Consumer Protection Act of 1991. Among its restrictions, the act prohibits solicitors from calling someone who asked not to be called again, and requires solicitors to maintain a list of those requesting not to be called.

However, privacy concerns reach beyond the nuisance of unsolicited mail or phone calls. Surviving relatives have been tormented by receiving new sources of unsolicited junk mail addressed to a lost and loved family member, even ten years after the family member has died.(4) The elderly fall prey to and are especially targeted by deceptive mail practices, prompting the passage of the Deceptive Mailings Prevention Act of 1990. American Express was exposed in 1992 for not only selling lists of cardmembers names, but for having disclosed the buying habits and preferences of individual cardmembers to merchants.(5)

The Illegal U.S. Postal Service National Change of Address Program The USPS also sell names, although few citizens know it, through the National Change Of Address (NCOA) program. Twice per month the USPS sells the name and address of anyone who has moved and filled out a yellow USPS change-of-address form (USPS Form #3575) to about two dozen of the largest mailing list companies. Almost 40 million Americans fill out the change of address cards each year.(4) The House Government Information, Justice, and Agriculture Subcommittee held hearings on the NCOA program, and found that these two dozen USPS licensees sell the names to "thousands of direct mail companies."(4)

The Subcommittee found that the "NCOA program contravenes section 412 of the Postal Reorganization Act of 1970 and subsection (n) of the Privacy Act of 1974."(4) Similar USPS address correction programs such as the Computerized Delivery Sequence (CDS) and Delivery Sequence File (DSF) programs also contravene section 412 of the Postal Reorganization Act.(4) The prohibition of 39 U.S.C.A. § 412, Nondisclosure of lists of names and addresses, is explicit: "Except as specifically provided by law, no officer or employee of the Postal Service shall make available to the public by any means or for any purpose any mailing or other list of names or addresses (past or present) of postal patrons or other persons."

Theoretically the two dozen USPS licensees use the names and addresses which they receive from the USPS only for correcting their own lists. In reality, NCOA licensees use NCOA records to create new mover lists which are sold directly to mailing list companies. The change of address information of a Subcommittee staffer who moved in July 1990 was disclosed by the licensees as many as 9,900 times from Sept. 1990 through June 1992.(4)

The NCOA program allows anybody who presents an old address to the USPS to receive the new address for a $3 fee. The Subcommittee heard how this service can be abused. A woman who moved and got an unlisted number explicitly to get away from an abusive spouse was found by the spouse who got her new address from the Post Office. (4)

The Subcommittee's findings were published by the House Committee on Government Operations. Its recommendations included allowing customers to opt-out of the NCOA program by providing a check off box on the change of address form, and improving the Privacy Act notice on its change of address form, making clear the purposes and uses of the change of address information, including new mover lists.(4) The Subcommittee recognized that legislation was required to make all USPS programs fully compliant with the law. As a result, the Postal Privacy Act was introduced. (6) This law has not yet passed.

The USPS has only marginally improved the Privacy Act statement on the change of address form. Previously, the form said only that a new address "may be given to others." The form now says: "If filed, your new address will be provided to individuals and companies who request it. This will occur only when the requestor is already in possession of your name and old mailing address..." However, even this improved statement doesn't tell the whole story, because, as noted above, the names and addresses do get distributed far and wide on new mover lists. The NCOA licensees pay $56,000 per year for the NCOA information, so the information can be expected to be and in fact is sold for profit.(6)

The USPS will make it more difficult to obtain addresses of people under court protection, such as battered spouses. However, this raises a question of fairness and equality. Should battered spouses get special protection from privacy invasion that the rest of society can not enjoy?

A Very Important Case: Rowan v. United States, 397 U.S. 728 (1970) The Postal Service's NCOA program is not the only source of generated lists. Motor vehicle rolls, county records, telephone and utility companies, credit card companies, and other sources have and may release name and address information. List trading was a $3 billion business in itself in 1990.(2) Therefore, even a NCOA program made fully compliant with federal law would not stop unwanted bulk mail. Other approaches are necessary.

A U.S. Supreme Court case, Rowan v. United States Post Office Department, appears to provide relief. The issue in Rowan was the constitutionality of 39 U.S.C.A. § 3008, Prohibition of pandering mail matter. This federal statute provides that a person who has received by mail "a pandering advertisement which offers for sale matter which the addressee in his sole discretion believes to be erotically arousing or sexually provocative" may request the Postmaster General to issue an order "directing the sender and his agents or assigns to refrain from further mailings to the named addressee" and requires the sender to delete the addressee's name from his mailing lists.

The Court in Rowan held that "The statue allows the addressee unreviewable discretion to decide whether he wishes to receive any further material from a particular sender" and that "A vendor does not have a constitutional right to send unwanted material into someone's home, and a mailer's right to communicate must stop at the mailbox of an unreceptive addressee."

The Court interpreted Congressional intent in crafting the statue as to specifically avoid having the Federal government from acting as censor. "In operative effect the power of the householder under the statute is unlimited; he may prohibit the mailing of a dry goods catalog because he objects to the contents - or indeed the text of the language touting the merchandise. Congress provided this sweeping power not only to protect privacy but to avoid possible constitutional questions that might arise from vesting the power to make any discretionary evaluation of the material in a governmental official."

Rural Versus City Fairness Issue The USPS regulations allow mail to be sent to rural routes with "Simplified Address" formats.(7) Simplified addresses allow general distribution to each boxholder on a rural route and do not require a street address or name. Because the carrier simply puts the same mail piece in every box and does not have to bother keeping track of addresses, delivery costs are reduced for the USPS and the sender. Senders (except for federal government agencies) can not use simplified addressing to send mail to city residents.

Simplified addressing makes it virtually impossible for rural residents to stop bulk mail which is sent to them via simplified address format. No mailing list exists for the rural route resident to request to be removed from. The sender would have to either stop sending mail to the entire rural route, or create a mailing list and then send the mail via a non-simplified address format, which is more costly. Senders strongly resist adopting either of these choices. Despite persistent efforts, the author is sent a weekly average of 1.5 pounds of junk mail via simplified address. Simplified mail delivered in this volume and regularity easily surpasses the de minimis burden determined for a single piece of junk mail in Harris v. Time. Since simplified addressing is prohibited for city addresses, a city resident's address must be on their mail. The same exact pieces of mail which a rural resident is forced to receive a city resident could stop by requesting the sender to simply delete their (city) address from the sender's list.

Any piece of unopened mail (except mail sent certified, registered, insured or COD) may be marked "Refused" at the time of delivery or a reasonable time after delivery, and the Post Office must pick it up.(8) Only first class mail refused in this way will be returned back to the sender. Third class bulk mail is either thrown out or (increasingly) recycled by the Post Office. However, being forced to continually refuse mail is an unnecessary burden and wastes resources.

Contractual Question The mailing permit which bulk mailers purchase forms part of a contractual arrangement between the USPS and direct mail companies. These contracts place non-de minimis burdens on third parties (i.e. the addressees), who are not a part of the contracts. Additionally, addressees do not share the increased profit which the USPS and direct mailers enjoy. Mailers can send nonletters (catalogs, etc.) with simplified addresses via Carrier Route at a cost of five or ten cents per piece less than sending the same mail via the Basic Rate or via 3/5 Presort. The addressee does not share in this, and instead, receives and must dispose of an unwanted mail item, often repeatedly. Can two contracting parties legally subject millions of third parties to this type of contractual arrangement indefinitely?

Summary and Areas for Further Study Bulk advertising mail will not go away. Direct mail is still profitable despite a response rate of only 2 percent.(9) Direct mail does serve a purpose for people in remote locations and for certain specialty item catalogs. The bulk mail industry affects 3.5 million jobs.(3)

The direct mail industry and USPS both profit from increased mail volume. A consequence of this incestuous relationship is that the USPS continues to violate federal laws by selling mailing lists to direct marketers through NCOA and other programs, two years after a House Subcommittee exposed the practice as illegal. Congress must pass the Postal Privacy Act to address the illegality while maintaining the efficiency-promoting features of the NCOA program.

A 10-week summer study of the junk mail problem should first verify, update and enhance the existing documentation of the environmental impact of junk mail. The actual sources of the paper fiber used for bulk mail should be identified. Junk mail recycling rates should be quantified, and methods to increase them should be suggested.

A second main focus of the study would be identifying methods to give citizens firm control over their mailbox. Direct mailers are increasingly including check-off boxes for people to keep their addresses private, but list selling is still too lucrative, and outside pressure is required. A mail version of the Telephone Consumer Protection Act should be drafted. The mail version could consider solid-waste management rates for bulk mail, first proposed by N.Y. Consumer Protection Board member Richard Bossert. (9) The study must recognize the difference between commercial direct mailers and non-profit bulk mailers, and find a balance between encouraging efficiency versus facilitating waste and privacy invasions. An important product of the study would be a consumers guide giving citizens all the information they need to adequately control their mail. This guide could serve as a model for the USPS to publish.

Finally, less junk mail reduces business for a Postal Service already competing with e-mail, faxes, and Federal Express. A study would look at ecologically sound methods to increasing Postal Service revenue. One appealing idea is to make it free for citizens to send letters to U.S. Congress. The U.S. treasury would reimburse the USPS for all letters sent, including the Congress member's response. This would increase citizen participation in government, and help rehabilitate the U.S. Postal Service from a nuisance deliverer of junk mail into an important component of a revitalized democracy.

(This is a slight modification of a proposal Michael Worsham submitted to an American Bar Association for the 1995 Summer Intern Public Interest Program.)

(1) Michael Esh, Want To Do Something for The Environment and Your Privacy? Stop Your Junk Mail!, Newsletter (The Stop Junk Mail Association, Sausalito, CA), 1994.

(2) Jill Smolowe, "Read This!!!!!!!!," Time, Nov. 26, 1990.

(3) Will Nixon. "Are We Burying Ourselves in JUNK MAIL?," E Magazine Dec. 1993.

(4) H.R. Rep. No. 1067, 102nd Cong., 2nd Sess. (1992)

(5) Peter Pae, "American Express Co. Discloses It Gives Merchants Data on Cardholders' Habits," Wall Street Journal, May 14 1992.

(6) H.R. 1344, 102nd Cong., 2d Sess. (1993).

(7) Domestic Mail Manual, § A040.1.0-1.2 Alternative Addressing Formats - Simplified Address, DMM Issue 47, Apr. 10, 1994.

(8) Domestic Mail Manual, § D042.1.0- l .3, Conditions of Delivery, DMM Issue 47, Apr. 10, 1994

(9) Marc Eisenson, "Stop Junk Mail Forever," Mother Earth News, August/September 1994