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Al Iverson, my good friend, asked me to have a look at a question asked on Twitter by @drdigipol about DNSBLs and advocacy groups. Here’s the question (in case you don’t feel like following the link):
Question re SPAM Blacklist Services: What r policies re advocacy orgs that send email not covered by CAN SPAM (i.e. 1st Amend protected)?
There are some important understandings missing from this question. First of all, there is this terrible misunderstanding of the status of advocacy groups. Advocacy groups do not enjoy greater First Amendment protections than the average citizen. Second, the CAN-SPAM Act of 2003 does not impact DNSBL policy at all.
If you want to rephrase the question into something that makes a bit more sense, it needs to look like this:
Question re SPAM Blacklist Services: What r policies re email not covered by CAN SPAM?
When we phrase it that way, we can see the obvious answer much more quickly: The policies are whatever the policies are. You can visit their websites and see what those policies might be.
But, that’s not what our petitioner really wanted to know. We learn that from the rest of the thread here.
1. @drdigipol: Question re SPAM Blacklist Services: What r policies re advocacy orgs that send email not covered by CAN SPAM (i.e. 1st Amend protected)?
2. @drdigipol: @MarkatEMR What r ur thoughts about advocacy groups protected by 1st Amend/not covered by CAN SPAM having email blacklisted?
3. @MarkatEMR @drdigipol Not a lawyer, but guess 1st amen’rights give no immunity to blacklisting by *private* orgs/networks (e.g. ISPs)? Try @aliverson
4. @drdigipol: @MarkatEMR TY Mark. @aliverson Ur thought re advocacy groups getting blacklisted for SPAM even though not covered by CAN SPAM law?
5. @aliverson: @drdigipol non profit spam is still spam. No legal basis to say “you can’t blacklist me.”
6. @drdigipol: @aliverson What about blacklists that use double opt-in criteria?
7. @aliverson: @drdigipol What about them? Are they run by the gov’t? If not, then how does 1st amendment apply? They’re not widely used, either.
8. @drdigipol: @aliverson Since political/policy speech protected by 1st Amend, seems blacklisting advocacy orgs that don’t use dbl opt-in is problem.
9. @drdigipol: @aliverson I realize prvt companies can filter what they want, but not everyone using blacklists understand what is being blocked.
10. @drdigipol: @aliverson Many advocacy grps use single opt-in via action alerts & follow SPAM law anyway. But I heard NJABL.org blacklisted anyway.
11. @aliverson: @drdigipol you need a new lawyer.
12. @aliverson: @drdigipol I am also forced to ask, what does CAN-SPAM have to do with spam blacklists? I’m not seeing any reference to them in the law.
13. @drdigipol: @aliverson Let’s be clear… I am doing research for the field, not dealing w/ any specific case. No lawyer involved or needed.
13. @drdigipol: @aliverson CAN-SPAM defines what constitutes SPAM legally. Services blacklisting email that isn’t SPAM, but protected free speech is problem
14. @drdigipol: @aliverson Even if those services r prvt/not gov, that they blacklist orgs doing 1st amend protected outreach is a fundamental problem.
15. @aliverson: @drdigipol i.e. it is entirely irrelevant that a certain type of mail was not contemplated by CAN-SPAM but might still be blacklisted.
16. @drdigipol: @aliverson It’s 1 thing if indiv org blocks email from source, but services doing it 4 many clients very is different.
17. @aliverson: . @drdigipol Start with Comcast v e360. “Comcast is a private enterprise and has no obligation to honor the free speech rights of e360.”
18. @drdigipol: @aliverson I understand that prvt co’s have no obligation to honor speech rights. But what makes sense isn’t just about legal obligations.
19. @drdigipol: Regardless, many thanks for letting me pick your brain. Very helpful.
So, we need to rephrase the question yet again, so that it asks the question that is actually on @drdigipol’s mind:
Question re SPAM Blacklist Services: What r policies re advocacy orgs that send 1st Amend protected email?
This doesn’t change the answer to the question. DNSBLs are allowed to set their own policies and abide by those policies, and there are no First Amendment considerations to be made, as Al correctly points out by quoting Judge Zagel who referenced a 1973 Supreme Court case in e360insight, LLC v. Comcast Corp., 546 F.Supp.2d 605, 611 (N.D. Ill. 2008), (“Comcast is a private enterprise and has no obligation to honor the free speech rights of e360. C.B.S. v. Democratic Nat’l Comm., 412 U.S. 94 (1973). “). C.B.S. is important here because you have someone who wanted to cause their political message to be disseminated by a private entity. In C.B.S., they tried to make that happen using the Fairness Doctrine and the First Amendment. And the Supreme Court held that the First Amendment covers governmental actions, not the actions of private entities — even in cases of political speech. That means that this has been settled law since about the time that email was invented.
That said, Congress has passed two laws which touch on this area. The first is the CAN-SPAM Act of 2003. Yes, that CAN-SPAM Act of 2003. 15 USC 7707(c) reads:
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.
What is the practical effect thereof? ISPs are allowed to block whatever they will, no matter what definitions they choose to apply.
The second is the Communications Decency Act of 1996 (CDA). Yes, THAT Communications Decency Act of 1996. 47 USC 230 gives us the key provision:
No provider or user of an interactive computer service shall be held liable on account of–
(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).
Of the two provisions the one in the CDA is the most well tested. The most tested part is the definition of “interactive computer service.” The key cite here appears to be Batzel v. Smith, 333 F.3d 1018, 1023 (9th Cir.2003), for that definition. For instance, it was relied upon in an unpublished opinion by California’s 4th District in Pallorium v. Jared, no. G036124, slip op. at 12 (Cal. Appl. 4th, January 11, 2007), to find that Jared was immunized by the CDA as an interactive computer service while he was running the Osirusoft DNSBL.
The CDA, then, generally provides the list provider with enough legal cover that there is no case against them for failing to carve out exceptions to their listing policies for people sending out email in the furtherance of political or religious ends.
Ultimate, our pleading plaintiff falls back to “just because they’re not breaking the law doesn’t make it right!” Which may be good theoretical argument. There are lots of things that aren’t right, even if they may not be violative of some statute.
All of that said, there is not a fundamental problem at work here. Yes, communication is more difficult for advocacy groups if they must obtain permission before sending email or run the risk of getting blocked. But, the system is not broken. There are lots of other ways to get the word out — and solicit people to voluntarily join a mailing list for future emailed updates.
Thanks much for taking the time to lay out all these details. I think the first thing that is clear is that this may be one issue that is difficult to express on Twitter (I am normally a huge advocate that 140 characters is not a prohibitive barrier to discussing complex issues, but this one challenged me).
A little background: Much of the email advocacy groups send deal with educating and mobilizing people with respect to policy issues before Congress and other government bodies. These emails are fundamentally "political speech" as referred to in the 1st Amendment. This is why government ban and restrictions on SPAM do not apply to such communications. They are protected free speech.
That said, no advocacy organization wants to the be the judicial test case for such a claim. For that reason, and out of respect for people on their email lists, advocacy groups (with few exceptions), comply with the CAN-SPAM. Advocacy Groups rely on opt-in, provide a physical address, and an easy unsubscribe link.
The instigation for my initial tweet was that I learned NJABL.org was blacklisting organizations that did not use a double opt-in process.
An important way most advocacy organizations grow their lists is by running advocacy campaigns where taking the action also signs you up for their email list. As a rule, this sign up process is fully disclosed on the action form. There are several advocacy campaign services that work this way, including Salsa, Capwiz, and Convio.
The other side of the equation is that organizations and ISPs that use blackisting services don't always fully appreciate who is being blacklisted. Indeed, some blacklisting services include other blacklisting services filters within their own, making it even harder to understand who is being blackisted and way.
While I fully appreciate that private companies can blacklist anyone they want, it strikes me as problematic on a practical, if not ethical level, to blacklist groups exercise protected political speech in such a blanket way.
I am not advocating banning the practice of blacklisting such groups, but rather suggesting it is important for people to better understand what is being blacklisted and why. If people have the right to freely express political views and those views are being blocked in a way that is obscured by the layering of blacklists or the difficulty in understanding who is blacklisted, that raises concerns in my mind.
In the end, I am all for ensuring that email is protected from abusers. I just don;'t want to see that net cast too broadly such that it compromises our rights.
I hope this helps to clarify things.
And again, many thanks to you, Al, and Mark for taking the time to discuss this with me.
Given that commercial mailers sending non-protected speech to people who want to receive it have few problems delivering to 99%+ of their recipients mailboxes I have to wonder just how badly run Alan's mail campaign is, or how many dirty email address lists he's purchased, for him to be seeing a level of delivery problems that he's this concerned about it.
A lot of political and advocacy email campaigns feel that they don't need to behave ethically, and don't need to care about whether their recipients want to receive their email and instead fall back on "it's protected speech". That didn't work for sound trucks and noise control statutes, and it's not going to work for spam.
NJABL doesn't blacklist _anyone_ "for not doing double opt-in." You have to hit spamtraps or otherwise cause a problem to get listed. I work for a large email service provider with many clients both commercial and political, and it is clear to me that the key is best practice guidance and rules applied across ALL senders. Your comments imply that an advocacy group sends a special class of bulk mail and should be treated differently. I disagree strongly; it's either spam or not spam. Those are the two classes that spam filters define, and I think that's the better way to do it.
Nobody's "rights are being compromised" over a spamblock implemented by a private entity. Never, ever. BY DEFINITION, this cannot happen. It's not possible. That's not how Constitutional rights apply in this scenario.
The issue isn't the speech, the issue is the behaviour. If the protected speech conformed with the behaviour standards then it wouldn't be blocked. If advocacy and political groups behaved in a socially acceptable manner then their mail would get to the inbox.
When mailers say "I just want to tell as many people as I can about my great idea" that is spam. Sending mail people didn't ask for and don't want is poor social behaviour on the internet. Adding someone to an advocacy list because they signed a petition is poor practice, generates complaints and causes blocking. Not just at NJABL, but at ISPs that actually listen to their users and let recipient feedback drive filtering decisions.
I also think that the people who make blocking decisions for large organizations understand a lot more about what choices they are making than you give them credit for. Sure, there are people running small mailservers that will use any blocklist without understanding what they're doing. But when you're talking large organizations they actually measure performance. One of those measures is: how much mail are we blocking that our users want. If the recipients don't tell the ISP your mail is wanted (either by complaining to their ISP that they're not getting mail they asked for or moving mail out of their spam/bulk folder) then the ISP is going to rightly treat that mail as unwanted.
Again, the issue is not the speech. The blocks are not done because of what you are saying. The blocks are based on behaviour. If advocacy groups act like spammers, then they'll be treated like spammers. If they stop spamming and start sending mail to people who want it, then the blocking issues go away.
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