Anti-Spam Laws and the First Amendment

by on August 7, 2008 · 14 comments

I’m reading about the first-ever felony conviction for spamming. While I almost always agree with the ACLU on free speech issues, I found the Virginia ACLU’s amicus brief in the acse totally unpersuasive.

The ACLU argues that the First Amendment protects a right to anonymous speech, which I wholeheartedly agree with. However, I don’t think that right can be stretched so far as to strike down the Virginia anti-spam statute at issue in this case. This statute prohibited the falsification of email headers while sending more than 10,000 pieces of unsolicited bulk email. So this means that under the statute, someone may (a) send out an unlimited number of emails using a real email address, (b) send out 9999 emails per day (99,999 per month, 999,999 per year) while falsifying email headers, or (c) send out an unlimited number of emails with falsified addresses to people who have previously consented to receive them. I find it extremely difficult to imagine a circumstance in which these restrictions would impinge on legitimate exercises of free speech. The activities prohibited by this statute simply don’t include the kinds of situations that motivate the constitutional protection of anonymous speech—defending a point of view or releasing sensitive information without fear of reprisal or public embarrassment. Whistleblowers might want to send falsified emails to a few dozen journalists, legislators, or business leaders, but I’m having trouble thinking of a plausible situation in which a whistle-blower had a genuine need to reach more than 10,000 people.

I find analogies to older technologies—and to 18th-century pamphleteers in particualr—unpersuasive in this case because this case just isn’t like anything that existed in the pre-Internet age. In 1975, there just wasn’t any way to transmit tens of thousands of messages for a fraction of a penny per message. The costliness of information transmission—any available communications technology cost at least a few pennies per message—meant that the law never had to grapple with the possibility that sending messages could become a significant enough nuisance to require regulation. Now we do live in that world, and I think it’s a mistake to put too much weight on misleading analogies to older communications technologies with vastly different properties.

A final reason anti-spam legislation doesn’t bother me from a First Amendment perspective is that I don’t see any slippery slope here. Not only is the activity being targeted unambiguously bad, but there are very few grey areas, and the grey areas are pretty bad themselves. The Virginia statute applies two very clear bright lines—spam must be unsolicited and it must consist of more than 10,000 pieces in a 24-hour period—that make it trivially easy for anyone interested in following the law to do so. Moreover, thanks to the growth of spam filters, there is an enormous gulf between bad spammers and legitimate emails users. Legitimate users who did vaguely spam-like things (say, a non-profit organization that sent out a fundraising appeal to people who hadn’t consented to receive it) would get most of their spam blocked by ISPs’ spam filters and would get contacted by email administrators very promptly to be told to knock it off. It’s hard to imagine such an organization breaking Virginia’s law (sending out 10,000 copies and forging email headers), and even if it did it’s hard to imagine a prosecutor going after them. Which means that only spammers are engaging in spammer-like behavior. It’s pretty easy to write a statute that criminalizes most spammers and few if any legitimate email users. To use the Supreme Court’s lingo, Virginia’s spam law strikes me as “narrowly tailored” to blocking an undisputed evil and is no more restrictive than is necessary to accomplish that objective. If there’s any speech restriction that should pass First Amendment scrutiny, this is it.

Update: None of this is to say that some anti-spam laws can’t be too broad. CAN-SPAM, for example, appears to criminalize the sending of “multiple” deceptive emails or the creation of more than five separate email accounts for sending commercial emails. I can certainly think of grey areas for those kinds of prohibitions, and would have serious doubts about their constitutionality.

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