No, of course not. But this is a specious argument at best.

Server efficiency does not require anything more than the University decides that it requires. The decision about what is required for servers to efficiently do their jobs should rationally be made based upon the resources available to the University, not by the resources available to a third-party provider, whether that be AOL, Yahoo, or Google.

In your case, it seems to me that your problem is that you think the policies established by the University should not apply to you based upon the (political) content of the speech. But those policies were already in place and everyone had to live under them.

In denying review in case in which an off-campus matchmaker service sought
judicial relief against the University’s interception of its messages, the Court let stand a ruling by the Fifth Circuit Court of Appeals, which upheld the University’s blocking policy even though the messages met the requirements imposed by the CAN-SPAM Act. The case did not present the question whether members of the campus communicty could be banned likewise if they used the university’s system to distribute communications with commerical or political content.

http://www.faculty-rights-coalition.com/WhiteBuffaloCasenote.html

One federal district court said yes, and cited Judge Spark’s summary judgment opinion in the White Buffalo litigation in support. See Faculty Rights Coalition v. Shahrokhi, 2005 WL 1657116, 177 L.R.R.M. (BNA) 3194, S.D.Tx., Jul 13, 2005.

http://www.faculty-rights-coalition.com/FRCvShahrokhi.html

It is fair to say that WBV raised some interesting questions concerning the “server efficiency argument”

Unfortunately, in response, UT said in essence:

“it is not right to send unsolicited bulk e-mail”

Although I agree with the sentiment, this is a subjective basis to justify blocking commercial speech. It did not satisfy the Court (at least on a summary judgement motion) as a rational basis to justify UT’s filtering policies, although the Court did uphold UT’s filtering policies based on the user efficiency argument.

So?

* The Court became involved in a constitutional commercial free speech analysis because UT is a “State Political Unit.”

* Can an Internet access service as that phrase is defined in 47 U.S.C. 231(e)(4), that is not a “State or Federal political unit” use Sec. 8(c) of the CAN SPAM Act of 2003 to say, “this provision allows us to do anything we want with e-mail going across our network and therefore we are immune from suit?”

My own view?

I would anticipate the Courts will say that section 8 (c) simply means that the CAN SPAM Act of 2003 imposes no obligations on the “filtering” policies of Internet access services.

In turn, the Courts will need to look to State and Federal law, read in light of the American Constitution to ascertain whether the particular Internet access service is immune from suit, given its “filtering” policies.

For this reason, I would suggest that Internet access services will at least want to have a “good faith basis” for their filtering decisions, to allow for potential immunity under 47 U.S.C. 230.

The underlying reason the server efficiency argument failed in this case is not that WBV did a good job of presentation.

Rather the evidence of UT failed to meet to any objective test.

In essence, UT said:

“it is not right to send unsolicited bulk e-mail”

This is a totally subjective basis to justify blocking commercial speech. It did not impress the Court as a rational basis to justify the filtering policies of UT.

What is the point I am making?

* Network operators should not look at Sec. 8(c) and say, this provision allows us to do “anything” we want (my server my rules).

This is especially true where the network, even though privately owned, operates in a public or quasi-public capacity.

* Network operators operating public or quasi-public facilities will want to read section 8 (c) in light of the first amendment.

* The rational for blocking e-mail should have some “good faith basis” to survive the constitutional test that under-pins section 8 (c).

(See for example 47 U.S.C. § 230)

All that being said, it is not right to send UBE.

But a Court will require a stronger evidentiary basis to support the server efficiency position then merely the bald claim, “it is not right” put in response to the spammer’s position “we will work with you through rate limiting and delivery timing.”

A couple of general comments:

* This case is somewhat different because UT is a State entity, although the Court did not determine that UT’s servers are “public.”

* The American Courts have extended first amendment protection beyond merely State entities to include public places, even though the public discourse is taking place on private property.

* To avoid difficulties, I am suggesting in the case of networks that cater to the public, the Court’s may read into section 8 (c) a “good faith” requirement.

What we need to consider is the flip side, where a consumer network (Internet access service) is blocking requested bulk mail from being delivered to its customers and takes the position under section 8(c) – our server, our rules.

If push came to shove:

* Would the Courts read into section 8 (c) a good faith requirement?

* How does 47 U.S.C. § 230 interact with section 8 (c) of the CAN SPAM Act of 2003?

* And on a broader scale, does the failure to prohibit the sending of commercial e-mail without consent under the CAN SPAM Act of 2003 create a problem?

The Act allows unsolicited bulk commercial e-mail, while allowing networks to make their own rules in handling e-mail.

Is solicited bulk commercial e-mail the only legitimate form of commercial e-mail?

If so, does the failure to prohibit unsolicited bulk commercial e-mail, while by necessity permitting networks to make their own rules mean the Act is an unreasonable burden on legitimate commerce?

As an example, by allowing networks to have their own rules, does this means that:

* Subject to external pressure from other networks, the larger back-bone providers for example can host spammers, and their support facilities, ignore zombie botnets and simply say, our network, our rules?

- and -

* Unless there is across the board peer pressure, there is a disincentive on the large back bone providers to incure the necessary expenditures to enforce network security?

John Glube
Toronto, Canada