Block That Spam

Like cockroaches, spam may be impossible to defeat completely. But colleges on Tuesday won an important tool in their quest to limit spam's intrusions into campus e-mail boxes. A federal appeals court ruled that the First Amendment and a federal law do not limit the ability of a public college to block spam from reaching users' e-mail accounts.

The ruling was by a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, and involved a challenge by an online dating service for students to the e-mail rules of the University of Texas at Austin. White Buffalo Ventures owns the dating service, LonghornSingles.com, as well as similar services that focus on other universities.

White Buffalo said that the university's rules to block it from sending unsolicited e-mail messages to students violated both the First Amendment and a federal anti-spam law, but the appeals court rejected both arguments, and found that the university was within its rights. The court's ruling was limited in one respect however. It upheld the Texas policy as a justified measure to take on behalf of the individuals who use the university's e-mail system. However, the court rejected another justification put forward by Texas: that the policy was needed to keep its servers running efficiently.

Steven L. Worona, director of policy and networking programs for Educause, said that the ruling was significant for higher education broadly, not just the University of Texas. "There are many campuses where literally 90 percent or more of their e-mail is spam, and it's a huge expense," Worona said. "It's extremely important for universities to find appropriate, legal, effective ways to limit the amount of spam that they have to process."

The dispute dates to February 2003, when White Buffalo used a public-records law to obtain e-mail addresses of Texas students. Shortly thereafter, the company started to send mass e-mail to tens of thousands of students and others at the university, at which point Texas began receiving complaints about the spam. The university responded by asking White Buffalo to stop sending the e-mail; when it refused, the university blocked all incoming e-mail from the White Buffalo IP address that was the source of the spam.

At that point, the company went to state court to seek an injunction against the ban. The case was moved to federal court, where a district judge ruled in the university's favor. The appeals court ruling is more significant as it is now binding precedent in the states covered by the Fifth Circuit (Texas, Louisiana and Mississippi) and may be cited elsewhere too.

The appeals court rejected White Buffalo's argument that the university had no right to enforce its own anti-spam rules because Congress has passed federal legislation, the CAN-SPAM Act, on the matter. But the appeals court found that exemptions in that law allow a public college (and many other entities) to have their own policies with regard to spam.

On the First Amendment issue, the appeals court applied a series of tests on limits of commercial speech to the Texas ban on spam. While the tests are complicated, they come down to asking whether a state policy limiting commercial speech meets a legitimate need, and doesn't go too far beyond that need. On these questions, the appeals court divided Texas's defense of its policies and analyzed separately the university's arguments that blocking spam was needed to help those who use the e-mail system and to protect the university's servers.

Regarding those who hold e-mail accounts, the appeals court said the university was on solid ground. "There can be no serious dispute that UT's anti-spam policy, which blocks specific incoming commercial spam after account-holders have complained about it, directly advances" the interests of the university, the decision said. The judges added, "We have little problem affirming the proposition that, to keep community members from wasting time identifying, deleting, and blocking unwanted spam, UT may block otherwise lawful commercial spam (as long as the blocks are content- and viewpoint neutral."

The judges were more skeptical of the university's arguments with regard to its servers. The judges suggested that Texas might have protected its servers in other ways besides a ban, such as limits on the volume and timing of spam e-mail. Generally, the judges said in their opinion, litigants have been too quick to use server concerns to justify arguments about legal issues related to networks.

" 'Suffer the servers' is among the most chronically over-used and under-substantiated interests asserted by parties (both government and private ones) involved in Internet litigation," the decision said.

While the court rejected the university's argument about servers, that didn't result in a defeat for the university because it needed to prove only one compelling argument for its policy to be upheld.

White Buffalo officials did not respond to messages seeking their views on the decision.

Worona, of Educause, said that colleges would benefit from it. If White Buffalo's arguments on the CAN-SPAM act had prevailed, he said, colleges would have had difficulty doing anything about spam.  "What White Buffalo was trying to say would have turned the CAN-SPAM Act on its head because it would have said that as long as you don't violate that act," any e-mail is legal, he said. "That would have made it easier to distribute spam."

The court's rejection of the university's server argument didn't worry Worona that much. He said that in most cases where enough spam is coming in to affect servers, the spam would affect others as well (such as the students getting e-mail in this case). So Worona said that the server ruling was "narrow enough" that it should not limit university actions against spam distributors.