The American Civil Liberties Union is considering taking action against the state of South Dakota, charging that it violated the U.S. Constitution when it blocked email from an Internet service provider whose customer was sending mass mailings.
Online services such as CompuServe (CSRV) and America Online (AOL) have a right to block email from individuals because they're private and customers can simply choose to go elsewhere if they don't like their policies, said Ann Beeson, a spokeswoman with the ACLU. CompuServe is asking a federal judge to allow it to ban email from a notorious spammer.
But when South Dakota blocked all email coming from Technology Dimensions because a customer of the ISP was forwarding mass email petitions to government employees about a controversy over sacred Native American sites, it violated the Constitution, Beeson said.
"We believe that South Dakota's efforts to restrict email access to government officials is a violation of the First Amendment and citizens' rights to petition their government," she said.
Mike Godwin, staff attorney for the Electronic Frontier Foundation, agreed. While private companies like CompuServe can pretty much ban any email they wish, a government body has to answer to the Constitution, Godwin said.
"If I walked down the street and said CompuServe must listen to me, you might think, 'That guy's a little inflated,'" Godwin said. On the other hand, he added, "if you said I have a complaint against the government of South Dakota and they are not even opening my mail, you have a different issue."
Jim Soyer, spokesman for Governor William Janklow, defended the state's move, saying government employees were being flooded with petitions filled with inaccuracies.
"It's just like junk mail," Soyer said. He added that he tried contacting the woman leading the petition drive through email and by phone but was unable to reach her all of Tuesday.
When officials couldn't contact her to correct what Soyer said were factual errors in the email, they blocked TDI from sending email to the site. Had the petition been accurate, Soyer said, they would have allowed the spams, regardless of how many were sent.
"She refused to listen to us, and why should we listen to her?" he asked.
But Beeson and Godwin said it's not that simple. The government has a constitutional obligation to listen, they say, regardless of the message's content.
"It's not that you only get to petition to government when the goverment judges you to be correct," Godwin said.
Beeson added that because South Dakota blocked everyone, they couldn't have known the content of other email. "Their block had the effect of blocking legitimate messages," she said.