I'm going to forward this to 391 of my professors! Oh wait...

After the heated discussion in class on Monday concerning the Hamidi v Intel case, I searched the web looking for answers concerning spam and private property. What I found only raised more questions in my mind.

On September 15th, 2008, Kara Spencer, a senior and associated students director at Michigan State University, sent out a mass email to 391 professors regarding a proposal announced by the Provost. The proposal was to shorten the fall semester, creating less time for new students to become acclimated and a new final exam schedule, which overlapped into the weekend. For various reasons, Spencer and many others on campus did not agree with this proposal. She emailed professors from her private gmail account, explaining the proposal and encouraging them to contact the Office of the Provost if they had questions or concerns. You can find a copy of her email here.

Here's where the story gets interesting. One professor on campus became upset, worried that Spencer had accessed a private listserv (which she had NOT). So Spencer had a Disciplinary Allegation Form filed against her, was accused of breaking 3 school policies regarding bulk email, and was to be seen before a hearing for not complying with policies. A copy of the charges can be seen here.

First, there is no question she broke University policy. The policy states that a student can only send email to a "small set of recipients". And I quote: “'Small set of recipients' means the size of individual-recipient address lists (To, CC, BCC fields) typical of most e-mails in common use, ranging from 1, to a few, to as many as may be involved in a large committee or work group (~20-30)." Basically, emailing over 30 people without use of a listserv or University approval is against school policy.

Very well, she broke school policy. But my question is, is that policy even legal? I'd like to look closely at the online policy, as well as the allegations on her disciplinary allegations form that deal with the school policy.

First, I'd like to look at the sentence in the school policy that states:

"Although the user sent the email from a gmail account, the emails were distributed to the recipients through the MSU network and were relayed using MSU email servers to MSU email accounts."

One only needs to remember the decision in Hamidi v. Intel. Even though Intel's servers were private property, Hamidi was able to send mass emails through them due to the very nature of the servers and the fact that his emails were not commercial. Intel was the "post master general" in this situation. So by precedent, anyone sending emails through MSU servers is legal as long as it is not spam.

But what is spam? According to the University's "Guidelines," spam is any "undesired email." A very broad definition. I receive emails daily from the University that I consider undesirable. According to the law review "Invasion of Privacy v Commercial Speech," spam is defined clearly by the Congressional "Can-Spam Act" of 2003. It states, "The Can-Spam Act defines spam e-mail as a 'commercial electronic mail message,' which means 'any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose)'" Very different definitions.

So in the interest of the case of Spencer, were her emails spam? In the law review "Hi-Tech in the Law Office: The basics of spam and strategies for defense," they list the 8 requirements and prohibitions an email must meet to not be considered spam, as laid down by the "Can-Spam" Act of 2003.
1) Cannot falsify or disguise the sender's true identity.

• Spencer's email address was clearly displayed, and her name and contact information was given at the bottom.

2) Cannot have misleading subject lines.

• The subject line was "Changes to Academic Calendar," a perfectly accurate subject.

3) Cannot harvest email addresses automatically through a system...etc...

• Spencer did not have a spam server randomly generating email addresses for her. They were specifically chosen by her.

4) A business cannot knowingly promote themselves falsely or with misleading information.

• Spencer was not promoting a business so this is not applicable.

5) Must include a legitimate return address for the sender.

• Spencer's email address was clearly visible at the top and she actually provides a contact address for herself at the end.

6) Must have an opt-out mechanism for receivers to opt-out of receiving future emails.

• This is a tricky circumstance, since Spencer did not use automated machines like typical spam. However, receivers are able to block her address, create a filter, or request to not receive more emails.
  

7) Must be clearly identified as containing sexually oriented material if applicable.

• This scenario is not applicable to this situation.

It seems Spencer's email passes the spam test! Not only that, but her speech can also be considered political speech, as it concerns a public school proposal that was proposed by school administration. And as the "Can Spam" Act states, "The Act does not apply to political or charitable spam."

But not so fast. As MSU's policy states:
"1. Prohibited uses: Bulk emailing may NOT be used for personal purposes, advertising or solicitations, or political statements or purposes."

Now hold on a second. A student at a public University cannot send an email to over 30 people concerning politics? I don't even feel the need to say much on that other than it seems completely illegal. Protection of political speech is perhaps the most important reason we have the First Amendment at all.

I must be fair to the University however. Apparently, it's okay to send bulk email, including political speech, as long as it is approved first by the University. As Spencer's allegation document states:
"The student used MSU computing resources in a way contrary to the guidelines which clearly state that proper authorization is needed to send bulk emails."

Is it right for the University to have to approve speech? Including political speech? I feel no. I have a feeling that if Spencer had sent a pro-administration email, she would not have been silenced. The University claims in a news article that

"It is clear that this policy is content neutral and is a set of procedural requirements that apply to all bulk use of the e-mail system, as opposed to a policy that makes distinctions based on the content of particular e-mails. It is our belief that such a policy does not impose unlawful restrictions on free speech."

But what criteria must a bulk email meet before it is approved? Must it be desirable? (since that is their definition of non-spam). That seems very subjective to me, and would absolutely result in content discrimination in my opinion.

To wrap up my thoughts, I do believe it is clear the Spencer violated a school policy. However, I feel this policy is not legal. It clearly goes against our First Amendment rights. It goes against court precedent, against legislative terminology (what spam is), against freedom of political speech, and against non-discrimination of content.