Spam, Free Speech and the Founding Fathers

As it turns out, neither event will make much difference to the amount of spam you’ll receive today, tomorrow, or at any time in the near future. But to my way of thinking, it is just another reminder of how difficult it is to get the judiciary to understand Internet issues.

Jaynes was convicted in 2004 of flooding America Online’s servers, most of which are located in Virginia, with tens of thousands of unsolicited emails advertising various products, including pornography. After his conviction, and subsequent sentencing to nine years in prison, Jaynes took his appeals to the state’s highest court.

In a unanimous decision, Justice G. Steven Agee wrote that, "the right to engage in anonymous speech, particularly anonymous political or religious speech, is 'an aspect of the freedom of speech protected by the First Amendment,' citing a 1995 U.S. Supreme Court case.

"By prohibiting false routing information in the dissemination of e-mails," the court held, Virginia's anti-spam law, "infringes on that protected right."

The problem with the Virginia law boiled down to the fact that lawmakers were overly broad in drafting the statute, writing it in such a way that the prohibitions covered not just commercial email, but those with political or religious content as well.

Under well-established constitutional tests, restrictions on non-commercial speech are judged under a far stricter level of scrutiny than purely commercial speech.

Virginia prosecutors argued the spam law wasn’t about speech, rather it was a trespass law focused on protecting the private property – the email servers of companies such as AOL – from the harmful acts of unauthorized users.

The Virginia Supreme Court rejected that argument, drawing a distinction between false and fraudulent header information, saying that false header information doesn't necessarily mean the information is fraudulent. By equating the two, the law’s prohibition against falsifying email headers took away the ability of email senders to be anonymous.

"Because e-mail transmission protocol requires entry of an IP [Internet Protocol] address and domain name for the sender, the only way such a speaker can publish an anonymous e-mail is to enter a false IP address or domain name," Justice Agee wrote.

Unfortunately the court then overplayed its meager understanding of the technology by suggesting that the Virginia law would have outlawed the publication of the Federalist Papers, a series of articles advocating the ratification of the U.S. Constitution in 1787-88, had they been published in this modern era.

While I understand the court’s reasoning, and I can even get behind their holding that the statutory language was an overreach – something I actually complained about to Virginia lawmakers back in 2003 when the law was drafted – I found the court’s analogy of the Federalist Papers to be both ill-conceived and offensive to the reasons why we have a First Amendment.

The Federalist Papers are a series of articles written by Alexander Hamilton, James Madison, and John Jay, advocating the ratification of the United States Constitution. They were published in newspapers over a course of months in 1787 and 1788 under the name Publius.

There is no record of our founding fathers taking copies of their articles door-to-door, shoving them unwanted in people’s faces, forcing their way onto private property to paste copies on people’s doors. Yet that’s what Justice Agee seems to think they’d be doing.

In my estimation, spam would probably have been the least likely mode of publication. That’s because our Founding Fathers were actually much savvier than today’s Virginia Supreme Court Justices in understanding the appropriate and effective use of what was then the cutting edge of 18th century technology.

If Publius were publishing today, the arguments would be blogged, twittered, and posted in YouTube videos, all cross-linked with Facebook and MySpace pages. And the beauty of all those mediums is that every one of them could be used in a highly anonymous fashion, without the forgery or falsification of a single IP address, domain name, or spoofed “From” address.

The Virginia court got lost in the IP address mumbo-jumbo and lost sight of an important reality: if a communications channel is driven to the brink of collapse by abuse, that channel is unavailable for anyone’s free speech. Moreover, when talking about a network made up of the private property of others, speech is never “free” in terms of the costs as they are borne by those providing the medium.

Ultimately, the simple-minded judgment of the court – that free speech requires an “anything goes” mentality – doesn’t properly consider that if the cacophony renders communication impossible, no one’s interests are well-served.

As one famous judge once wrote, the Constitution isn’t a suicide pact. Hopefully future courts will consider Virginia’s exercise in silliness to be an outlier case and look more critically at both the technology, and the practicality, when weighing the rights of spammers against the need to protect the email medium.

Ray Everett-Church is Director of Privacy and Industry Relations for Responsys, Inc., a leading global provider of on-demand email and marketing automation solutions. He is a founder of CAUCE, an anti-spam advocacy group, and co-author of Internet Privacy for Dummies.