An about-face by Michigan State University administrators, who had censured a student leader in a case stemming from a campus anti-spamming policy in December, has not placated civil liberties advocates. For them, the case reflects a broader concern that ill-applied anti-spamming policies, through overbreadth and misuse, may suppress free speech.
Last December, MSU administrators found Kara Spencer guilty of violating an anti-spamming policy after Spencer, a member of the Student Government Association and the University Committee on Student Affairs, sent an e-mail to 391 MSU faculty members about a proposal to shorten the academic calendar.
Although the charges have since been dropped, Cindy Cohn of the Electronic Frontier Foundation, the group that represented Spencer, says the case is about “having over-zealous anti-spamming policies … . A spam policy not done thoughtfully will end up being a censorship tool.” This is a “classic problem,” said the EFF’s legal director, in that there is a tendency for people who “aren’t sensitive to come up with a licensing or approval scheme” to reduce spam e-mails.
On Sept. 15, 2008, Spencer e-mailed a letter to a hand-picked list of faculty about the proposed changes to the school year. The message stated in part: “As concerned students we feel that adequate time has not been given to address the multitude of issues the proposed changes raise … . We believe that an inclusive dialogue among members of the University community and a comprehensive evaluation of all available information are imperative.”
MSU Network Security Administrator Randall Hall alleged on a Sept. 17 disciplinary form that, through this e-mail, Spencer “used MSU computing resources in a way contrary to the guidelines which clearly state that proper authorization is needed to send bulk e-mails.”
The university’s spamming policy prohibited sending unsolicited e-mails to more than about 20-30 recipients over two days without university approval. The policy further banned all personal or political e-mails. When Spencer informed administrators in advance of her intention to send the e-mail, she said, no one cautioned her against it.
Spencer asked to present her case to a student-faculty judiciary panel and appeared before that panel in a Dec. 2 hearing. In a Dec. 10 e-mail to Spencer, the panel found her guilty of violating the spam policy because she had sent the e-mail “in bulk,” because it was a personal e-mail, was not sent on any campus organization’s behalf, and because administrators had not given Spencer authorization. In the e-mail the judiciary panel issued her a formal warning.
Spencer sought legal counsel from EFF. Cohn said that, after signing on to the case, EFF got word that administrators were going to destroy tapes from the informal hearing. Cohn contacted MSU to stop them from doing so, and told them that Spencer and EFF planned to appeal the judiciary panel’s decision.
An open letter sent to MSU President Lou Anna K. Simon on Dec. 18 by EFF and 12 other civil liberties groups stated that “MSU’s policy and actions demonstrate a deep misapprehension of the duties of a public college under both the First Amendment and the canons of academic freedom.”
The university had claimed earlier that the actions it took against Spencer were a result of a purely procedural issue, and that the anti-spamming policy was content-neutral. Cohn said that administrators were initially “defending the policy rather than trying to fix it” because the university “didn’t understand prior restraint.”
“I hope and remain hopeful that the problem here was a lack of understanding and not (an attempt) to strong-arm a student,” said Cohn. “Hopefully other schools will take a look at their policies and avoid going down this road.”
On Dec. 12, Spencer appealed the decision, and the charges were withdrawn on Jan. 22, 2009.
"Anti-spam technologies protect us against unwanted messages, but we need to do more to ensure that they don't also prevent us from receiving wanted speech," wrote Cohn and Annalee Newitz in their November 2004 paper on EFF’s Web site, “Noncommercial Email Lists: Collateral Damage in the Fight Against Spam.” “Those who implement [anti-spamming] measures must be sensitive to the fact that what they are processing is speech, and that free speech is one of the core elements of a democratic society.”
MSU’s anti-spamming policy, though not currently enforced against students, according to the administration, has not been removed from the school’s Web site. Though administrators told Spencer that the policy cannot be removed because it must be used to prosecute true spammers, Spencer worries that “it leaves students and faculty with the impression that [the same policies] are still in place.”
The First Amendment Center Online tried to contact Kristine Zayko, general counsel at MSU, and Lee June, the student affairs vice president, but they did not return messages.
Caroline Tenenbaum is a senior majoring in political science at Belmont University in Nashville, Tenn.