Monday, September 15, 2008

Spam,Spam Spam Spam Spam Spam, Glorious Spam

Last week the Supreme Court of Virginia held that that state's anti-spam law was overbroad. The opinion contains an interesting and pretty sophisticated discussion of First Amendment overbreadth doctrine (in which I have long had an academic interest). The core substantive decision, however, rests on the conclusion that an anti-spam law that makes it a crime for any person "to falsify or forge electronic mail transmission information or other routing information in any manner in connection with the transmission of unsolicited bulk electronic mail" violates the right to anonymous speech.

The U.S. Supreme Court has held that anonymous speech is protected by the First Amendment, and the Va Supreme Court worries that in applying to non-commercial as well as commercial spam, the VA statute infringes the right to speak anonymously. The VA Supreme Court writes that "were the Federalist Papers just being published today via e-mail, that transmission by Publius would violate the [VA] statute."

The conclusion that the VA statute forbids anonymous speech rests on the assumption that there is no way to speak anonymously without falsifying or forging routing information. But this seems false. A spammer whose identity appears as "spammer" or "anonymous" would be anonymous. True, he'd have to then falsify routing info, violating the statute, but this isn't especially effective anyway. The spammer in the case, one Jeremy Jaynes, was tracked down. And there are certainly websites that permit one to send anonymous emails that don't involve falsifying router info. It's just that the router info doesn't lead back to the sender, unless the hosting service decides to comply with a criminal investigation and reveals it.

Most fundamentally, if someone is handing out physical pamphlets that purport to be authored by "Publius," the audience will know this is a pseudonym, and individuals can decide for themselves whether they want to receive it. But email that appears to come from a friend or co-worker is not pseudonymously or anonymously authored in any real sense.

Bottom Line: Give the VA S Ct credit for rightly caring about anonymity on the web, but take points away for not recognizing that anonymity can be protected without necessarily sheltering spammers.

Posted by Mike Dorf