CAN-SPAM in court

Law, Technology 494Comments (6)http://mickc.whizardries.com/archives/2005/08/03/can-spam-in-court/CAN-SPAM+in+court2005-08-03+22%3A11%3A48MickC

Tech News on ZDNet reports that “[a]n online dating service does not have the right to blast unsolicited e-mail at thousands of University of Texas e-mail addresses, a federal appeals court ruled.”

It seems that White Buffalo Ventures thinks it has a constitutional right to spam. In February 2003, the company filed a Public Information Act request with the University of Texas for a list of all email addresses at the school. By April 2003, they were flooding those accounts with solicitiations. Most of those were invites to use their LonghornSingles.com dating service.

The University asked White Buffalo to cease and desist. White Buffalo refused. The University instituted blocks against the email. White Buffalo sued claiming that the University’s action violated the US Constitution’s First Amendment and the CAN-SPAM Act of 2003.

What they apparently didn’t read was Sec. 8(c) which reads:

(c) NO EFFECT ON POLICIES OF PROVIDERS OF INTERNET ACCESS SERVICE- Nothing in this Act shall be construed to have any effect on the lawfulness or unlawfulness, under any other provision of law, of the adoption, implementation, or enforcement by a provider of Internet access service of a policy of declining to transmit, route, relay, handle, or store certain types of electronic mail messages.

The University here is acting as a provider of Internet Access Service for its students. Thus, they would seem to be protected by this section.

And remember, this isn’t someone trying to send their political thoughts to everyone at the University of Texas, but commercial solicitations. The actions of White Buffalo are stupid, senseless, and may be abusive. The only reason I don’t say “abusive on its face” is because the University is a State entity and so there might be a question to be asked.

Although, in my opinion the question is as stupid as the answer is obvious.

UPDATE: For the other side of the story, you can look here. White Buffalo’s CEO Brad Armstrong says “The court itself says there are a lot of gaps between [CAN-SPAM] and other acts. In other words, the CAN-SPAM act appears to be in conflict with other acts Congress has passed. I’m trying to get an idea of what other remedies are available.”

But, again, Sec. 8(c) is directly on point: “Nothing in this Act shall be construed to have any effect”. Those “gaps” simply don’t exist because CAN-SPAM cannot, by its plain language conflict with their lawfulness.

And, of course, Armstrong misses the point of the First Amendment when he says “he’s disappointed that the government’s now butting into his First Amendment rights.” The point of the First Amendment is that the Government may not tell him what to say. Time, place, and manner restrictions have a long and storied history in First Amendment law. However, the First Amendment does not mandate that a government entity (the University of Texas, in this case) be forced to forward his message to all and sundry. The effect of telling the University that it may not block messages after requesting the sender cease and desist is to say that University students do not have a right to refuse to listen and that the University’s IT department may not act to protect the State’s property.

Where does this end? If I get mad at the University of Texas and decide to take it out by initiating a Distributed Denial of Service (DDOS) attack against the University’s servers to demonstrate my anger more tangibly, do I get a pass?

Would UT be able to block my DDOS of the state’s equipment or do I have an unfettered right to deny the use of those services offered by those servers in order to make a political point? If you answered in agreement with the former half of that question then you would be right. If you answered in agreement with the latter then you need to know that it’s a taking and violates several statutes, some of them criminal.

So, how does CAN-SPAM fit into this? There are much stronger protections against political speech than there are commercial. Like it, love it, or hate it, that’s the current state of the law. If I cannot launch a DDOS in order to make a political statement under the First Amendment, if the University has the right to dictate what traffic traverses its servers even though it denies my First Amendment right to vent my frustration with a governmental agency, then the protections under the First Amendment that White Buffalo thinks it has to force commercial messages across those same pieces of equipment are surely less.

The long and short of it is that the longer I think about this, the more I’m convinced that White Buffalo is wasting the Court’s time and resources.

UPDATE II:
I’ve finally had a look at the decision. This is a published decision so it does establish precedent and is controling in the 5th Circuit (which is where I live so this is especially important to me).

Of particluar importance is what you read on page 6 of the opinion:

There are two competing interpretations, both rooted firmly in the text of the Act, of the degree of authority state actors may wield in response to commercial spam. Under the first, state entities may not regulate commercial speech except where that regulation relates to the authenticity of the speech’s source and content. Under the second, state entities may implement a variety of non-authenticity related commercial speech restrictions, provided the
state entity implementing them is an “Internet access provider.”

As a result of Congress’s apparent failure to contemplate this question, we must not infer preemption. The textual ambiguity triggers the strong presumption against such a finding, and we cannot be sure whether UT’s regulations fall within the ambit of the express preemption clause. UT may therefore implement the Regents’ Rules without violating the Supremacy Clause.

This is important. Where UT is acting, not as a state agency, but as a provider of Internet services, they are able to implement blocking and filtering. The “Regents’ Rules” are what mandated the blocking. The argument of White Buffalo was that the “Regents’ Rules” allowing the blocking of White Buffalo’s mail constituted a “law, statute, or rule” which went beyond what a state actor can do in regulating the content of email. The 5th Circuit disagreed and states pretty plainly that the tension there instead creates a presumption that the Rules are permissible.

Next, we read:

CAN-SPAM does not preempt the Regents’ Rules, because § 7701(b)(1) is in tension with plain text found elsewhere in the Act, and that tension triggers the presumption against preemption. The district court properly sought to interpret § 7707(c), which reads, “Nothing in this Act shall be construed to have any effect on the lawfulness or unlawfulness . . . of the adoption, implementation, or enforcement by a provider of Internet Access service of a policy of declining to transmit, route, relay, handle, or store certain types of electronic mail messages.” In finding no express preemption, the court both (1) averred that the ITC policy may not constitute a “statute, regulation, or rule of a State or political subdivision of a state,” § 7707(b)(1), and (2) noted that UT is a “provider of Internet access.” Any suggestion along the lines of (1)—that an ITC policy does not constitute a policy of a state subdivision—is incorrect and requires little explanation. ITC implements the directives of, and operates pursuant to the authority of, the Board of Regents; its policies therefore constitute rules of a state subdivision.

We therefore confine ourselves primarily to the discussion of (2). The district court stated that “UT is certainly a provider of Internet access service to its students, if not to its employees and faculty, so it is expressly authorized under the statute to implement policies declining to transmit, route, relay, handle or store spam.”

The district court says “certainly” without any reference to the definition provided in the statute. Congress, in fact, imports that definition wholesale from a statutory predecessor, the Internet Tax Freedom Act: “[A] service that enables users to access content, information, electronic mail, or other services offered over the Internet, and may also include access to proprietary content, information, and other services as a part of a package of services offered to consumers.” 47 U.S.C. § 151.

We doubt that those legislators responsible for passing the Internet Tax Freedom Act gave serious consideration to the situation the instant facts present. UT indeed provides Internet Access Service—any time somebody sits down at a computer terminal on campus—but users need not check their UT email from UT network computers, because they can access the email server remotely. Nonetheless, status as an “Internet Access Provider” does not appear to turn on the fraction of access conducted remotely, and we are hard-pressed to find that providing email accounts and email access does not bring UT within the statutory definition borrowed from the Internet Tax Freedom Act. We therefore decide that UT falls within the ambit of § 7707(c).

7707(c) is the section of the code mentioned earlier in this piece as 8(c). Therefore, the 5th Circuit pretty firmly decides that 7707(c) means what it says.

But, the following piece of dicta also provides some thinking about how the Court might decide future cases for companies that provide only email accounts: “we are hard-pressed to find that providing email accounts and email access does not bring UT within the statutory definition borrowed from the Internet Tax Freedom Act.” This is good news for people who want to use CAN-SPAM to protect themselves and provide some number of email accounts for others, even though it’s not controling. It shows that the Court is taking the provisions of CAN-SPAM pretty liberally in favor of providers.

The First Amendment discussion is pretty good, but deserving of a post in its own right. This is especially true with Footnote 24. Stay tuned.

UPDATE III: My notes on the Server Efficiency argument mentioned on pages 10 and following are now available.

MickC @ August 3, 2005