United States Court of Appeals
Fifth Circuit
F I L E D
August 2, 2005
In the
United States Court of Appeals Charles R. Fulbruge III
Clerk
for the Fifth Circuit
_______________
m 04-50362
_______________
WHITE BUFFALO VENTURES, LLC,
Plaintiff-Appellant,
VERSUS
UNIVERSITY OF TEXAS AT AUSTIN,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Western District of Texas
______________________________
Before DAVIS, SMITH, and DEMOSS, its internal anti-solicitation policy,2 UT
Circuit Judges. blocked White Buffalo’s attempts to send un-
solicited bulk commercial email.
JERRY E. SMITH, Circuit Judge:
White Buffalo sought to enjoin UT from
This case involves the regulation of unsoli- excluding its incoming email. The district
cited, commercial mass electronic messages court denied the injunction. On cross-motions
(“emails”) (a species belonging to the larger for summary judgment, the court granted UT’s
communication genus often referred to as motion and denied White Buffalo’s. White
“spam”).1 Plaintiff White Buffalo Ventures, Buffalo appeals, challenging the ruling on the
LLC (“White Buffalo”), operates several on- grounds that federal law preempts UT’s
line dating services, including longhornsin- internal anti-spam policy (the “Regents’
gles.com, which targets students at the Uni- Rules”)3 and that the policy violates the First
versity of Texas at Austin (“UT”). Pursuant to Amendment. Mindful that this case presents
several novel issues, the significance of which
will grow proportionally with heightened cul-
tural and economic reliance on the Internet, we
affirm.
1
Because the term “spam” is often thought of We make two determinations. First, we de-
pejoratively, it is important to note that although cide that the CAN-SPAM Act does not pre-
that term necessarily implies that the email was empt UT’s anti-spam policy. Second, we
unsolicited, the more general meaning does not
(1) imply anything about the veracity of the in-
formation contained in the email; (2) require that 2
UT has a general policy against solicitation,
the entity sending it be properly identified or au- which it articulates in the Rules and Regulations of
thenticated; or (3) require that the email, even if the Board of Regents of the University of Texas
true, be commercial in character. There nonethe- System (“the Regents”). Pursuant to that policy,
less appears to be no consensus as to the precise UT, with limited exceptions, prohibits solicitation
meaning of the term “spam,” which is sometimes at and on its facilities and has promulgated specific
used synonymously with unsolicited “bulk” email. procedures dealing with unsolicited email commun-
A set of spam messages sent out together is called ications, including commercial solicitations. Under
an email “blast.” these procedures, when unsolicited email commun-
ications come to the attention of university network
The term “spam” derives from a 1970 Monty administrators (by way of complaints, system
Python Flying Circus sketch in which a waitress monitors, or other means), UT takes steps to block
recites a menu containing “egg and spam; egg ba- or otherwise stop the transmission of such emails,
con and spam; egg bacon sausage and spam; spam with or without notice to the sender, as cir-
bacon sausage and spam; spam egg spam spam cumstances permit or warrant.
bacon and spam; spam sausage spam spam bacon
3
spam tomato and spam . . . .” See Roger Allen Specifically, White Buffalo contends that
Ford, Comment, Preemption of State Spam Laws UT’s regulations are preempted by the Controlling
by the Federal CAN-SPAM ACT, 72 U. CHI. L. the Assault of Non-Solicited Pornography and
REV. 355, 355 n.1 (2005) (citing DAVID CRYSTAL, Marketings Act of 2003 (the “CAN-SPAM Act” or
LANGUAGE AND THE INTERNET 53 (Cambridge the “Act”), 15 U.S.C. §§ 7701-7713, Pub. L. 108-
2001)). 187, 117 Stat. 2619 (2003).
2
determine that the policy is permissible under spam to targeted members of the UT
our First Amendment commercial speech juris- community.5
prudence, but we reserve judgment on whether
state university email servers constitute public UT received several complaints regarding
or private fora. unsolicited email blasts from White Buffalo.
UT investigated and determined that White
I. Buffalo had indeed sent unsolicited emails to
A. tens of thousands of UT email account-hold-
The parties do not dispute the facts. UT ers, at which point UT issued a cease and de-
provides, free of charge, Internet access and sist letter. White Buffalo refused to comply
email addresses to faculty, staff, and students with that letter, so UT blocked all email in-
at the domain “utexas.edu.” Owners of gress from the IP address6 that was the source
electronic mail accounts can access those address for the unsolicited White Buffalo
accounts either on-grounds (by means of spam. The filter blocked all email sent from
wireless connections or of wired, authenticated that IP address to addresses containing the
clusters) or remotely (by means of some other “@utexas.edu” string.
Internet access provider). An owner of a UT
user account may, for example, log on from B.
any third-party dial-up or broadband service White Buffalo obtained a temporary re-
provider and check for email residing on one straining order (“TRO”) in state court. UT re-
of UT’s 178 email servers. moved the cause to federal court on the basis
of federal question jurisdiction; there the TRO
UT has a policy of blocking many types of was continued pending a hearing on the pre-
incoming spam, irrespective of commercial liminary injunction. After a hearing in May
content or source authenticity. Under the Re- 2003, the district court denied the injunction.
gents’ Rules, the technology department (the The parties conducted discovery, and both
“ITC”) implements procedures (1) to block moved for summary judgment. The district
incoming unsolicited, commercial emails and
(2) to stop the transmission of such emails.4
5
We presume the legality of these emails based
White Buffalo operates several online dat- on this record, the parties’ agreement, and the
ing services, including one, called “longhorn- absence of any challenge.
singles.com,” that targets UT students. In
February 2003, White Buffalo submitted a 6
An Internet Protocol (“IP”) address is a un-
Public Information Act request seeking all ique 32-bit numeric address, written as numerals
“non-confidential, non-exempt email address- separated by periods, identifying each sender or
es” held by UT, which responded by disclosing receiver of information traveling across the In-
all qualifying email addresses. In April 2003, ternet. An IP address has two parts: the identifier
White Buffalo began sending legal commercial of a particular network on the Internet (say, the
first 24 bits) and an identifier of the particular de-
vice (which can be a server or a workstation) with-
in that network. In essence, an IP address
4
These procedures may or may not provide identifies a single computer; that computer might
notice to the sender, depending on the circum- be an entry point into an internal network, but that
stances. is not important for our purposes.
3
court granted UT’s summary judgment motion power to supplant state law is “an extra-
and denied White Buffalo’s. ordinary power in a federalist system.” Greg-
ory v. Ashcroft, 501 U.S. 452, 460 (1991).
II. Preemption radically alters the balance of state
A. and federal authority, so the Supreme Court
1. has historically refused to impose that altera-
This court reviews a summary judgment tion interstitially. See id. The Court has ex-
grant de novo, in accordance with the FED R. pressed this principle as a presumption against
CIV. PROC. 56 analysis that guides the district preemption of state law.9 Supremacy Clause
court. Ford Motor Co. v. Tex. Dep’t of analysis is classic “tie goes to the state” juris-
Transp., 264 F.3d 493, 498 (5th Cir. 2001). prudence, and the existence of an express pre-
The district court entered judgment for UT on emption provision does not always plainly de-
cross-motions for summary judgment. On re- marcate what the federal law expressly
view, the motions are reviewed independently, preempts.
with evidence and inferences taken in the light
most favorable to the nonmoving party. See 3.
id. We review a district court’s preemption The district court granted summary judg-
determinations de novo. See Baker v. Farmers ment to UT on White Buffalo’s claim that the
Elec. Coop., Inc., 34 F.3d 274, 278 (5th CAN-SPAM Act preempts ITC’s anti-spam
Cir.1994). regulations. The court premised its holding on
four propositions: (1) that the “purposes” of
2. CAN-SPAM, as determined by reference to
The doctrine of preemption stems from the the statute and the accompanying Senate Re-
Supremacy Clause,7 which gives federal law port, suggest that Congress did not mean to
precedence over a conflicting state law. See preempt technological approaches to combat-
Cipollone v. Liggett Group, Inc., 505 U.S. ing spam; (2) that § 7707(c) specifically ex-
504, 516 (1992). CAN-SPAM’s preemption empts UT from the scope of express preemp-
of state law derives from an express provision tion; (3) that § 7707(b)(2), which states that
in the Act. See 15 U.S.C. § 7707(b). “[s]tate laws not specific to electronic mail,
including State trespass, contract, or tort law”
Although a court should begin with the ex- are not preempted, exempts UT’s anti-spam
pression provided by Congress, it must also policy because that policy is part of a larger set
“identify the domain expressly pre-empted.”8 of anti-solicitation rules; and (4) that UT’s ITS
The fact that Congress has expressly policy is not a “statute, regulation, or rule of a
preempted certain activity is plain, but the State or political subdivision of a state” and is
scope of that express preemption is not. The
9
See Cipollone, 505 U.S. at 517-18; see also
7 Bldg. & Constr. Trades Council v. Associated
“This Constitution, and the Laws of the Unit-
ed States which shall be made in Pursuance there- Builders & Contractors, 507 U.S. 218, 224 (1993)
of; . . . shall be the supreme Law of the Land . . . .” (“We are reluctant to infer preemption . . . .”);
U.S. CONST. art. VI, cl. 2. Maryland v. Louisiana, 451 U.S. 725, 746 (1981)
(“Consideration under the Supremacy Clause starts
8
Cipollone, 505 U.S. at 517; see also Med- with the basic assumption that Congress did not
tronic, Inc. v. Lohr, 518 U.S. 470, 484 (1996). intend to displace state law.”).
4
therefore not preempted by § 7707(b)(1). We ing to White Buffalo, because UT is a state
do not organize our discussion around these actor and has conceded that White Buffalo’s
four propositions (because the appellate spam is not false or fraudulent, CAN-SPAM
briefing renders an alternate organization more preempts the Regents’ Rules authorizing the
desirable), but we discuss each in its email filters. White Buffalo provides no au-
appropriate context. thority beyond § 7707(b)(1) in support of this
position.
To our knowledge, no Fifth Circuit panel
has scrutinized any portion of CAN-SPAM, Matters become more complicated because,
and no court in this country has considered the in addition to setting forth the preemption
legislation’s preemption clause. This is there- clause, § 7707 carves out a set of entities to be
fore an issue of very, very first impression. exempt from any possible preemptive effect.
It states that “[n]othing in this chapter shall be
In part, CAN-SPAM prohibits fraudulent, construed to have any effect on the lawfulness
abusive and deceptive commercial email, 15 or unlawfulness . . . of the adoption, imple-
U.S.C. §§ 7703, 7704; provides for enforce- mentation, or enforcement by a provider of In-
ment of the Act by federal agencies, states, and ternet access service of a policy of declining to
Internet service providers (“ISPs”), id. § 7706; transmit, route, relay, handle, or store certain
and provides for the issuance of regulations to types of electronic mail messages.” § 7707(c).
implement the purposes of the Act, id. § 7711.
The parties have agreed, in the district court
and on appeal, that White Buffalo complied The district court held that CAN-SPAM
with the requirements of the CAN-SPAM Act. does not preempt UT’s anti-solicitation policy.
Its email blasts were not unlawful. It noted that § 7707(c) permits Internet service
providers to employ protection measures, and
Most relevant to White Buffalo’s claim is it held that UT belongs to that set of service
CAN-SPAM’S preemption clause: providers. The court also relied on Congress’s
acknowledgment of “the problems associated
This chapter supersedes any statute, regu- with the rapid growth and abuse of unsolicited
lation, or rule of a State or political subdi- commercial email [that] cannot be solved by
vision of a State that expressly regulates the Federal legislation alone” but that will also
use of electronic mail to send commercial require the “development and adoption of
messages, except to the extent that any technological approaches” to serve the goals
such statute, regulation, or rule prohibits of the Act. See 15 U.S.C. § 7701(a)(12). The
falsity or deception in any portion of a court found that “[t]he Act . . . does not pre-
commercial electronic mail message or in- clude a state entity like UT from using techno-
formation attached thereto. logical devices [such as] spam-filters to con-
serve server space and safeguard the time and
§ 7707(b)(1). resources of its employees, students, and fac-
ulty.” White Buffalo Ventures, LLC v. Univ.
White Buffalo argues that this preemption of Tex. at Austin, No. A-03-CA-296-SS, 2004
clause prevents UT from promulgating regula- WL 1854168, at *4 (W.D. Tex. Mar. 22,
tions to impede the ingress of longhornsin- 2004).
gles.com emails to utexas.edu users. Accord-
5
There are two competing interpretations, regulate the use of electronic mail to send
both rooted firmly in the text of the Act, of the commercial spam except where those rules
degree of authority state actors may wield in relate to source and content authenticity. UT
response to commercial spam. Under the first, emphasizes Congress’s choice to use the word
state entities may not regulate commercial “send” in the statute. As a result, UT argues,
speech except where that regulation relates to CAN-SPAM does not preempt its regulation
the authenticity of the speech’s source and of “received” emails. We decline to imbue the
content. Under the second, state entities may word “send” with the particular significance
implement a variety of non-authenticity related UT urges.11
commercial speech restrictions, provided the
state entity implementing them is an “Internet 2.
access provider.” CAN-SPAM does not preempt the Reg-
ents’ Rules, because § 7701(b)(1) is in tension
As a result of Congress’s apparent failure with plain text found elsewhere in the Act, and
to contemplate this question, we must not infer that tension triggers the presumption against
preemption. The textual ambiguity triggers preemption. The district court properly
the strong presumption against such a finding, sought to interpret § 7707(c), which reads,
and we cannot be sure whether UT’s “Nothing in this Act shall be construed to have
regulations fall within the ambit of the express any effect on the lawfulness or unlawfulness
preemption clause. UT may therefore imple- . . . of the adoption, implementation, or
ment the Regents’ Rules without violating the enforcement by a provider of Internet Access
Supremacy Clause. service of a policy of declining to transmit,
route, relay, handle, or store certain types of
B. electronic mail messages.” In finding no
1. express preemption, the court both (1) averred
UT argues that CAN-SPAM does not pre- that the ITC policy may not constitute a
empt the ITC policy (1) because the Act does
not displace the state’s ability to supplement
federal law and (2) because CAN-SPAM pre- 11
UT posits that CAN-SPAM regulates not the
empts state rules that relate to the sending, “receipt” of email, but the “sending” of it. UT then
rather than the receipt, of unsolicited commer- contends that the Regents’ Rules control the
cial emails. Section 7707(b)(1) carefully spe- “receipt” of email. Section 7707(b)(1) preempts
cifies state political subdivisions as falling state law regulating “the use of electronic mail to
within the scope of its preemption, and UT is send commercial messages.” All email (and all
a public school.10 “snail mail,” for that matter) is both “sent” and
“received.”
In a vacuum, the provision is explicit about
the types of policies CAN-SPAM preempts. The event triggering preemption is that the
In layman’s terms, state entities may not email was sent, not the particular identity of the
entity sending it. We do not mean to say that
“send” and “receive” never have more specialized
meanings in the statute, but only that the gram-
10
UT argues that ITS is not a political subdi- matical construction of this particular provision
vision of the state. This argument is meritless, as suggests emphasis should not be placed on that
we explain in part II.B.3, infra. distinction here.
6
“statute, regulation, or rule of a State or pol- stant facts present. UT indeed provides Inter-
itical subdivision of a state,” § 7707(b)(1), and net Access Service—any time somebody sits
(2) noted that UT is a “provider of Internet down at a computer terminal on campus—but
access.” Any suggestion along the lines of users need not check their UT email from UT
(1)—that an ITC policy does not constitute a network computers, because they can access
policy of a state subdivision—is incorrect and the email server remotely. Nonetheless, status
requires little explanation. ITC implements the as an “Internet Access Provider” does not ap-
directives of, and operates pursuant to the pear to turn on the fraction of access conduct-
authority of, the Board of Regents; its policies ed remotely, and we are hard-pressed to find
therefore constitute rules of a state that providing email accounts and email access
subdivision.12 does not bring UT within the statutory de-
finition borrowed from the Internet Tax Free-
We therefore confine ourselves primarily to dom Act.13 We therefore decide that UT falls
the discussion of (2). The district court stated within the ambit of § 7707(c).
that “UT is certainly a provider of Internet ac-
cess service to its students, if not to its em- D.
ployees and faculty, so it is expressly author- We analyze this issue using a Venn dia-
ized under the statute to implement policies gram,14 the intersecting area of which Con-
declining to transmit, route, relay, handle or gress did not anticipate—where the state entity
store spam.” is itself the provider of Internet access. In that
area resides activity that Congress has both
The district court says “certainly” without expressly preempted and expressly excepted
any reference to the definition provided in the from preemption analysis. Such tension,
statute. Congress, in fact, imports that defini- created by the text of the statute, leaves us
tion wholesale from a statutory predecessor, unwilling to overrule the strong presumption
the Internet Tax Freedom Act: “[A] service against preemption. The Regents Rules are
that enables users to access content, informa- valid under the Supremacy Clause.
tion, electronic mail, or other services offered
over the Internet, and may also include access III.
to proprietary content, information, and other A.
services as a part of a package of services White Buffalo contends that the district
offered to consumers.” 47 U.S.C. § 151. court erred in granting summary judgment on
We doubt that those legislators responsible
for passing the Internet Tax Freedom Act gave 13
It would be an unusual policy to allow pri-
serious consideration to the situation the in- vate, but not public, educational institutions to act
as custodians for the interests of its online com-
munity. The prudence of the policy, however, does
12
In a related passage, the district court stated not drive our determination that UT should be
that “the Board of [Regents] Rules governing so- considered an Internet Access Provider under the
licitation using university facilities cannot be said Act.
to be specific to electronic mail since it regulates
14
all forms of solicitation.” We need not decide this A Venn diagram uses circles to represent sets,
issue, because we have alternate grounds of making with the position and overlap of the circles in-
our preemption decision. dicating the relationships between the sets.
7
its First Amendment claim. Whether UT has speech is unlawful or misleading; (2) whether
violated White Buffalo’s First Amendment the government’s expressed interest is sub-
rights turns on the resolution of the four-part stantial; (3) whether the state action directly
commercial speech test in Central Hudson Gas promotes that interest; and (4) whether the
& Electric Corp. v. Public Service Com- state action is more extensive than necessary
mission, 447 U.S. 557 (1980). We review to promote that interest. See id. at 566.
First Amendment determinations under the
commercial speech doctrine de novo. See 1.
Moore v. Morales, 63 F.3d 358, 361 (5th Cir. Under the first Central Hudson prong, we
1995). Resolving this issue in favor of UT, we must determine whether the speech is unlawful
decline to reach the issue of whether UT’s or misleading. See id. Both parties agree that
email servers constitute public fora.15 White Buffalo’s commercial solicitations are
legal and that they contain factually accurate
B. information.
Commercial speech is “expression related
solely to the economic interests of the speaker 2.
and its audience.” Central Hudson, 447 U.S. Under the second Central Hudson prong
at 561. No one seriously disputes the com- we must assess the “substantiality” of the gov-
mercial character of the speech at issue here. ernment’s proffered interests. See id. UT ad-
vances two primary interests: (1) safeguarding
In Central Hudson, the Court invalidated the time and interests of those with UT email
portions of state regulations banning commer- accounts (“user efficiency”) and (2) protecting
cial advertising that promoted the use of elec- the efficiency of its networks and servers
tricity. See id. at 572. The Court determined (“server efficiency”). We distinguish between
that the government’s action was more exten- the two interests for reasons that are important
sive than necessary to promote the state’s sub- under the fourth prong of the Central Hudson
stantial interest in energy conservation. Id. at analysis.
569-70. In so doing, the Court announced a
four-part test to evaluate the legality of com- For purposes of evaluating the summary
mercial speech regulation: (1) whether the judgment, we acknowledge as substantial the
government’s gatekeeping interest in protect-
ing users of its email network from the hassle
15
In other words, we consider two hypothetical associated with unwanted spam. Also substan-
situations: one in which the UT servers are public tial is the “server efficiency” interest, but it
fora, and one in which they are not. If the servers must independently satisfy a “goodness of fit”
are not, then the First Amendment question is eas- inquiry under the fourth prong of Central
ily resolved—if a server is a private forum, the Hudson. “Suffer the servers” is among the
government may regulate the speech so long as it is most chronically over-used and under-substan-
viewpoint-neutral. In the alternative, if a server is tiated interests asserted by parties (both
a public forum, we apply Central Hudson. If we government and private ones)16 involved in
determine that this particular regulation would
satisfy either situation, we need not resolve the
dicey but admittedly important question of the pub-
16
lic versus private forum status of public university The opinion in eBay, Inc. v. Bidder’s Edge,
email servers. (continued...)
8
Internet litigation, and rules imposed pursuant 4.
to such interests require more than a judicial Having resolved the first three Central
rubber-stamp, for reasons we explain in part Hudson questions in UT’s favor, we must
III.B.4.b, infra. finally conduct the most difficult in-
quiry—whether the ITC policy is no more ex-
3. tensive than necessary to achieve at least one
Pursuant to the third Central Hudson of the two substantial state interests. See id. at
prong, we must next determine whether the 569-70.18 White Buffalo contends that UT’s
UT policy directly advances both proffered anti-spam policy fails to meet this final re-
substantial interests: (1) UT’s interest in sani- quirement, although White Buffalo’s precise
tizing the network for its email account-hold- objection is hard to discern. It appears to pro-
ers (user efficiency) and (2) its interest in test the over-restrictiveness of the policy on
preserving the operating efficiency of its serv- the ground that it is impossible to articulate
ers (server efficiency). See id. at 569. Again, precisely what the UT regulation is.
there can be no serious dispute that UT’s anti-
spam policy, which blocks specific incoming To the contrary, UT (relying on the district
commercial spam after account-holders have court’s disposition of the issue) reasons that
complained about it, directly advances both in- the policy is narrowly and specifically drawn to
terests. One can hardly imagine a more direct protect the system and users from only those
means of preventing commercial spam from unsolicited, commercial emails that have been
appearing in account-holders’ inboxes and identified as problematic by complaint, system
occupying server space than promulgating a monitors, or other means. The restriction is
policy that excludes such material from the tailored by blocking only those emails from
email network.17 specifically identified ISP addresses. Although
we may not agree with all of UT’s char-
acterizations of its policy, we are aware of
what that policy is. White Buffalo’s objection
16
in this regard is without merit.
(...continued)
Inc., 100 F. Supp. 2d 1058 (N.D. Cal.2000), is one
a.
of the first and perhaps the most conspicuous in-
stance of this rationale. The eBay court held, on a With respect to the first proffered substan-
trespass to chattels theory, that if the defendants tial state interest, which is promoting user ef-
crawling “activity is allowed to continue un- ficiency,19 the ITC policy is no more extensive
checked, it would encourage other auction aggre- than necessary. We have little problem affirm-
gators to engage in similar recursive searching of ing the proposition that, to keep community
the eBay system such that eBay would suffer ir-
reparable harm from reduced system performance,
18
system unavailability, or data losses.” Id. at 1066. For an explanation as to why only one sub-
See also note 25, infra. stantial interest need be satisfied, see part III.C,
infra.
17
Neither party provides caselaw in support of
19
its position on the question of substantial interest. By “user efficiency” we mean the ability of
The district court relied on extensive comments in UT email account holders to go about their daily
the Senate Report offered in support of the business without constantly having to identify and
CAN-SPAM Act. delete unwanted commercial spam.
9
members from wasting time identifying, One might persuasively present evidence that
deleting, and blocking unwanted spam, UT that spam, taken in its entirety, affects the
may block otherwise lawful commercial spam efficiency of email servers; indeed, that
(as long as the blocks are content- and appears to be what UT has proffered; it sub-
viewpoint-neutral).20 mits a list of between 1,500 and 2,000 blocked
IP addresses.22 Updegrove testified at the May
b. 2003 Preliminary Injunction hearing that UT’s
We reject, however, the proposition that “system” would not be able to function with-
the ITC policy is no more extensive than nec- out these blocks. Such testimony is common
essary to secure the state’s second substantial where server efficiency is offered as a state or
interest, which is the efficiency of its servers.21 private interest in Internet litigation.
We must nonetheless consider the evidence
20
in the light most favorable to the nonmovant.
UT Vice President of Information Technology
See Ford Motor Co., 264 F.3d at 498. More-
Daniel Updegrove testified at the May 20, 2003,
over, the challenged regulation should indicate
preliminary injunction hearing:
that its proponent “carefully calculated the
[A]t a minimum there’s the time it takes to costs and benefits associated with the burden
configure an e-mail filter, running the risk that on speech imposed by its prohibition.” Cin-
legitimate messages will be filtered erroneously
or one by one deleting the offending messages.
21
And there’s an ongoing question of how much (...continued)
of this message you have to actually encounter harms it recites are real and that its restriction
in order to decide that it’s spam. will in fact alleviate them to a material degree.
Consequently, the regulation may not be
He furthered affirmed that if UT “wasn’t allowed susta ined if it provides only ineffective or
to block or was somehow required under the Con- remote support for the government’s purpose.
stitution to unblock these 1700 some odd sites, that We have observed that this requirement is
it would severely degrade an employee’s ability to critical; otherwise, a State could with ease re-
do their job[.]” strict commercial speech in the service of other
objectives that could not themselves justify a
21
This “poor fit” could be rephrased as an ob- burden on commercial expression.
jection under several other Central Hudson prongs.
For example, the Supreme Court has made a (Internal citations and quotation marks omitted.)
similar analysis under the third prong. In Greater The prong under which we make our observations
New Orleans Broadcasting Ass’n, Inc. v. United matters little for Central Hudson analysis, how-
States, 527 U.S. 173, 188 (1999), the Court stated: ever, because the Supreme Court has stated that
“[a]ll are important and, to a certain extent, inter-
The third part of the Central Hudson test related: Each raises a relevant question that may
asks whether the speech restriction directly and not be dispositive to the First Amendment inquiry,
materially advances the asserted governmental but the answer to which may inform a judgment
interest. This burden is not satisfied by mere concerning the other three.” Id. at 183.
speculation or conjecture; rather, a govern-
22
mental body seeking to sustain a restriction on This information is contained in Exhibit 4.
commercial speech must demonstrate that the There are two constituent lists—one of blocks by
(continued...) host address and one of blocks by IP address.
10
cinnati v. Discovery Network, Inc., 507 U.S. For the server efficiency rationale to pass mus-
410, 417 (1993) (internal citations and quo- ter under the fourth prong of Central Hudson,
tations omitted). spam filters must block a set of spam that
poses a legitimate threat to server efficiency.
There is record testimony that White Buf-
falo can send a restricted volume of email at This is not to say that UT need draw gran-
off-peak times, so as not to impede server ular distinctions between types of spam where
efficiency. Moreover, UT’s list of blocked IP drawing them renders filtering economically
addresses does not make any of the types of infeasible.23 It, however, is to say that where
distinctions that Congress obviously thought UT may easily use certain types of fil-
important—distinctions between, say, ters—e.g., time of day and volume filters—UT
(1) truthful commercial messages and obscene should use them rather than categorically
images, (2) commercial messages with an un- exclude all unsolicited commercial bulk email.
subscribe feature and commercial messages If those types of filters are economically
without one, (3) emails sent during peak traffic infeasible, that evidence should be in the
times and those that are not, and (4) email that summary judgment record. The current record
originates from an authentic source and email reflects only that UT does not employ such
that does not. The rub is that although the filters because legal spammers are subjectively
record demonstrates that unblocking all spam “misusing” the system, not because they are
might compromise network efficiency, it says overburdening it.
nothing about the effects of allowing lawful
time- and volume-restricted commercial spam Our conclusion that, for summary judgment
to enter UT’s email network. purposes, there is an insufficient fit between
the ITC policy and the asserted interest in
An exchange at the preliminary injunction server efficiency is of little moment in the
hearing between UT’s attorney and Updegrove spam context. The server efficiency interest is
most vividly illustrates the poor fit between almost always coextensive with the user ef-
UT’s restrictions and the substantial interest in ficiency interest, and the fit is sufficient for the
server efficiency: latter; but declaring server integrity to be a
substantial interest without evidentiary sub-
Q: Well, [White Buffalo’s attorney] is say- stantiation might have unforseen and unde-
ing, well, “Hey, I can send this at night sirable ramifications in other online contexts.24
when the employees aren’t there. I won’t
send too many at one time. It won’t affect
your system that much because of that. 23
For example, as Updegrove testifies, it would
Now, is there a reason why that’s not an be impossible to filter spam based on whether the
acceptable proposition.” originator of the email was a legitimate business.
The email filters could not automate this task.
A: Well, if something is wrong, just be- 24
cause there’s a little bit of it doesn’t make This is no more than a cautionary note, the
importance of which has become more plain as a
it right. If a university makes resources
result of our increasing familiarity with litigation
available, misusing a little bit of those re-
involving the Internet. For example, in the many of
sources isn’t correct. the “digital trespass” cases, where a plaintiff bases
(continued...)
11
C.
A governmental entity may assert that a
24
(...continued) statute serves multiple interests, and only one
a trespass to chattels theory on a defendant’s of those need be substantial. See Bolger v.
unauthorized use of a network/computer system, Youngs Drug Prods. Corp., 463 U.S. 60,
the court will merely conclude, without evidence or 71-73 (1983). The ITC policy survives First
explanation, that the allegedly unauthorized use Amendment scrutiny despite its failure to jus-
burdened the system. tify that policy in relationship to the server
efficiency interest. We therefore decide that
One of the most prominent such statements
occurs in Compuserve v. Cyber Promotions, Inc.,
24
962 F. Supp. 1015, 1022 (S.D. Ohio 1997) (“To (...continued)
the extent that defendants’ multitudinous electronic available web site to gather information, without
mailings demand the disk space and drain the more, is sufficient to fulfill the harm requirement
processing power of plaintiff’s computer for trespass to chattels.”).
equipment, those resources are not available to
serve CompuServe subscribers. Therefore, the This rationale, with little to no evidentiary sub-
value of that equipment to CompuServe is dimin- stantiation, has likewise justified claims under the
ished even though it is not physically damaged by Computer Fraud and Abuse Act (“CFAA”), 18
defendants' conduct.”). Many courts mention sys- U.S.C. § 1030. See, e.g., Hotmail Corp. v. Van$
tem degradation and perfunctorily cite Compu- Money Pie, Inc., 1998 WL 388389, ¶ 34 (N.D.
serve, but focus primarily on things such as decline Cal. Apr. 16, 1998) (unpublished) (“The evidence
in customer goodwill, worker productivity, and the supports a finding that plaintiff will likely prevail
like. See, e.g., Am. Online, Inc. v. IMS, 24 F. on its [CFAA] claim and that there are at least
Supp. 2d 548, 550 (E.D. Va. 1998) (“[Plaintiff’s] serious questions going to the merits of this claim
contact with [Defendant’s] computer network was in that plaintiff [including] that defendants took
unauthorized; and [Plaintiff’s] contact with such actions [utilizing system capacity] knowing
[Defendant’s] computer network injured [De- the risks caused thereby to Hotmail’s computer
fendant’s] business goodwill and diminished the system and online services, which include risks that
value of its possessory interest in its computer Hotmail would be forced to withhold or delay the
network.”); Am. Online, Inc. v. LCGM, Inc., 46 F. use of computer services to its legitimate sub-
Supp. 2d 444, 452 (E.D. Va. 1998) (citing Compu- scribers; that defendants’ actions caused damage to
serve language). Hotmail; and that such actions were done by
defendants without Hotmail’s authorization.”). In-
Since eBay was issued, however, courts have terestingly, the court conducting the most thorough
become a little more circumspect about using the inquiry into actual system damage did so in the
“slippery slope” argument. See Ticketmaster process of declaring the issue to be one of triable
Corp. v. Tickets.com, Inc., 2003 WL 21406289 fact, precluding summary review. See Am. Online,
(C.D. Cal. Mar. 7, 2003) (“Since the spider does Inc. v. Nat’l Health Care Discount, Inc., 121 F.
not cause physical injury to the chattel, there must Supp. 2d 1255, 1275 (N.D. Iowa 2000). Even in
be some evidence that the use or utility of the com- the CFAA context, however, courts rely on the
puter (or computer network) being ‘spiderized’ is “loss” rather than the “damage” language in the
adversely affected by the use of the spider. No statute. See, e.g. EF Cultural Travel BV v.
such evidence is presented here. This court re- Explorica, Inc., 274 F.3d 577, 585 (1st Cir. 2001),
spectfully disagrees with other district courts’ find- a maneuver that almost mirrors courts’ tendency to
ing that mere use of a spider to enter a publicly favor the server efficiency interest in name but the
(continued...) user efficiency interest in substance.
12
UT’s anti-spam policy is constitutionally per-
missible under Central Hudson. Because we
so decide, we need not address what type of
First Amendment forum a public university
email network constitutes.
The summary judgment is AFFIRMED.
13