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Tuesday, Dec 2, 2008
An outraged constituent is suing Elizabeth Dole's campaign for sending junk e-mail. Is spam from politicians a crime -- or a vital First Amendment right?
Nov 20, 2002 | When Ken Pugh, a computer consultant, returned to his home office in Durham, N.C., this summer after spending three weeks hiking the Appalachian Trail in Connecticut and New Hampshire, he discovered a new breed of junk e-mail fighting for his attention among the usual crowd of penis enlargement and Viagra advertisements.
He was the disgruntled recipient of political spam from then wannabe-senator Elizabeth Dole. Pugh, who gets about 25 spam messages a day, had received eight unsolicited e-mails from candidate Dole, outlining her positions on everything from estate taxes (she's against them) to drought relief for North Carolina farmers (she's for it).
The computer consultant couldn't figure out how he'd gotten on the list, since he hadn't signed up for any bulletins from Dole's campaign Web site. One possibility: Dole's site includes a "refer a friend" feature that encourages supporters to offer up their chums' e-mail addresses on her candidacy's behalf.
Pugh didn't know what so-called friend might have opted him in, but he was happy to finally have caught a spammer who'd put her name on the messages: Elizabeth Dole. "All of a sudden, I'd gotten spam from someone who I could identify," says Pugh, a registered Independent.
North Carolina is one of 26 states with anti-spam laws. So Pugh wrote to the Dole campaign demanding $80 in reparations -- $10 for each unsolicited message, as the state statute specifies.
On Aug. 26, the Dole campaign responded, assuring Pugh that he'd been removed from its mailing list, but refusing the payout, pointing out that North Carolina's anti-spam law applies specifically to "commercial" e-mail messages.
"As the Dole campaign is not a commercial venture, we feel it would be inappropriate to send you a check at this time," wrote campaign chairwoman Margaret Klutz. Not missing any opportunity to plug her candidate, Klutz closed by suggesting that Pugh consult Dole's Web site for "more about Elizabeth's plan for helping North Carolina ..."
Instead, Pugh filed suit against the Dole campaign in small-claims court the second week of September. He asked for $80 in damages, which he justifies as $20 for the 12 minutes, at $100 an hour, he spent reading the messages; $20 for "emotional distress for having received spam from someone who should know better"; and $40 in punitive damages.
Although he concedes that Dole's messages were not of a commercial nature, he hopes the "computer trespass" part of North Carolina's anti-spam law will apply to his case, when his suit finally goes to court in Salisbury, N.C., on Monday, Nov. 25.
Although Pugh filed suit in early September, his case was delayed until after the Nov. 5 election, at the request of Dole's lawyer, who was busy with other cases in court. Dole campaign officials did not return calls for comment.
Their silence underlines the paradox inherent in anti-spam laws. The very politicians who craft and vote on spam legislation have no incentive to make the same rules apply to them.
"The politicians will not pass a law that says that they're not allowed to spam you," says Laura Atkins, president of the SpamCon Foundation, a nonprofit that fights bulk e-mail. "It's bad enough that they call me on the phone in the middle of dinner. To have them invade my e-mail in box is just another insult."
But free-speech advocates say that political e-mail messages should not be restricted. "The heart of free speech is political speech. The idea of democracy is dependent on educated voters. If you can't even talk to the people who you want to vote for you without running afoul of the fact that you might annoy them, I think it's a real problem for democracy," says Cindy Cohn, legal director for the Electronic Frontier Foundation.
It looks like spam, it smells like spam, but is it really the price of liberty?
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