Spam Mail Ethics

Virginia court decision highlights conflict between freedom from spam and freedom of speech

No one knows when the first junk mail was sent, but presumably as soon as the cost of postage dropped below the price people were willing to pay to present an advertisement the first junk letter was sent. So the amount of junk mail depends on the relationship between the benefit of the ad to the sender and the cost of delivery.

The low cost of e-mail revolutionized this cost structure, making it possible to send  millions of messages at negligible cost, whereas similar content sent as a mailing would have cost hundreds of thousands of dollars. These messages were denoted “spam”, apparently a reference to an old Monty Python skit where diners in a restaurant were served spam, spam, spam (spiced ham) whether they liked it or not.

Junk e-mail soon turned from an annoyance to a sizable international scourge. I used to spend about ten minutes each day trying to pick out the valid e-mails from the junk – which was over 95% of my inbox; millions of workers around the world were in the same situation, indicating that junk e-mail had become a multi-billion dollar problem.

Legislatures tried to regulate this scourge, but they ran into many problems. One was jurisdiction, since it’s easy to route spam through servers anywhere in the world. A more substantive legal problem is that one man’s spam is another man’s freedom of speech, and practical and fair criteria had to be established. Eventually most advanced countries, and most states in the US, passed anti-spam laws. In order not to stifle legitimate speech, a key criterion in most laws is identification of the sender. A sender who takes no steps to hide his identity will typically not be guilty of a crime. The Virgina statue explicitly requires “intent to falsify or forge electronic mail transmission information or other routing information.”

One of the very first, and one of the very few, people to be convicted under these laws was Jeremy Jaynes of North Carolina. Media reports state that he sent hundreds of thousands of e-mails a day, hundreds of millions of messages in all.  He routed much of his traffic through an AOL server in Virginia, thus exposing himself to the particularly strict Virginia anti-spam law. In 2004 Jaynes was convicted of violating the Virginia statute and sentenced to nine years in prison. (If it takes a second to delete each junk mail, then nine years is the amount of time needed to delete about 300 million spam messages, so the punishment seems to have fit the crime quite commensurately.) He has since been under house arrest pending appeal.

Six months ago Jaynes appealed to the Virginia Supreme Court, but his conviction was upheld by a 4-3 majority. In a fairly unusual legal move he appealed again to the same tribunal, and this week his conviction was unanimously overturned. The grounds for dismissal were that the law was overly broad, since it forbade also political and religious e-mails, which have special constitutional protection. Thus, the law was struck down as unconstitutional, even though all acknowledged that the specific speech used by Jayne was not in fact protected.

From an ethical point of view, the most interesting aspect of Jaynes’ appeal was the claim that the right to free speech inherently includes the right to anonymous speech. As I explained, the anti-spam statutes typically apply only to senders who hide their identity; otherwise even regular commercial e-mail is legal. Jaynes claimed, and the court agreed, that Constitutional freedom of speech includes the right to express your political views anonymously by “falsifying or forging” your identity.

The court illustrated this principle in forceful (and learned) fashion by pointing out that “were the Federalist Papers just being published today via e-mail, that transmission by Publius would violate the statute.” The reference is to a series of pamphlets supporting ratification of the US Constitution, written by three of the nascent United States’ greatest patriots: Alexander Hamilton, future president James Madison, and future Chief Justice John Jay. The authors concluded that the essays would have the greatest impact and least risk to reputation if published anonymously, and used the pseudonym “Publius”.

The drafters of the Virginia law are probably kicking themselves right now for their sloppy draftsmanship. If they had only been thinking of Hamilton, Madison and Jay they would have changed “falsifying or forging” to “fraudulently forging”, limited the scope of the law to commercial speech, and perhaps give consideration to the idea of trespass, and Jeremy Jaynes would presumably be today behind bars. The ruling does not refute the premise that effective anti-spam laws can and should be in place, although their urgency has declined since the advent of very effective filters.

However, their oversight had the salutary effect of highlighting an important ethical principle. It is precisely in conditions of tyranny, when freedom of speech is of greatest importance, that the need for anonymity is essential. Letting Jaynes free is a small price to pay to avoid any expression-chilling limitation of this right.