Political spam as national pastime

CNET News.com's Declan McCullagh explains why when it comes to political spam, many folks running for elected office don't think the law applies to them.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
3 min read
Aaron Russo wants your vote so badly, he's willing to spam you for it.

Last week, Russo, a Hollywood producer who is running for president as a Libertarian Party candidate, fired off thousands of unsolicited e-mail messages announcing his campaign and asking recipients to "help support Russo financially" with "automatic monthly contributions."

Russo, whose films include "The Rose" and "Trading Places," is not alone. Political spam has become a thoroughly nonpartisan communications technique, with Democrats, Republicans and third parties alike turning to bulk e-mail in numbers that are still small but steadily increasing. Two percent of all spam is political, according to statistics compiled by antispam vendor Brightmail.

Since Jan. 1, a federal law has regulated spam. But if you look at the law's fine print, you'll find a telling exemption: Our elected representatives made sure the restrictions don't apply to them. As a result, the Can-Spam Act covers only e-mail promoting "a commercial product or service," which lets political spammers off the hook.

Politicians love to spam for the same reason that Viagra vendors and alleged widows of deposed Nigerian dictators do: Bulk e-mail is a cheap way to reach lots of people. I wrote last year about how Sen. Joseph Lieberman was caught spamming, as was Howard Dean's ostensibly tech-savvy campaign. Republicans Bill Jones, the unsuccessful candidate for governor of California, Florida Gov. Jeb Bush and senatorial candidate Elizabeth Dole have resorted to junk e-mail, too.

Politicians love to spam for the same reason that Viagra vendors and alleged widows of deposed Nigerian dictators do.

"It's offensive," said Neil Schwartzman, a veteran spam fighter hit by Russo's bulk e-mail last week. "It's more annoying than getting regular spam for some reason...It's far more offensive than someone sending out pornography. It's insulting." Schwartzman pointed out that as someone living in Montreal, he's not exactly able to vote in U.S. elections.

Russo's campaign said its e-mail onslaught was an accident caused by combining mailing lists that were improperly vetted. "The intent was to send the mail out to people who we had some sort of indication would wish to be invited to the list," spokesman Stephen Gordon said. "These came from sources such as handwritten e-mails on clipboards from local events and e-mails that local coordinators give us...We're not sending out any bulk e-mails whatsoever until we're sure our database is clean. We're doing an absolute total review of our system to make sure it is as clean as possible."

Gordon noted that even though Can-Spam did not apply, the campaign chose to apologize rather than hiding behind the First Amendment. "I know legally we have the right to do it, but our campaign is not taking advantage of (that defense)," Gordon said.

The right to spam?

Free-speech advocates go further, saying politicians should enjoy an unfettered right to spam.

"I think that people are perhaps getting a little carried away in fighting spam," said Cindy Cohn, legal director for the Electronic Frontier Foundation. "Commercial spam is a real problem. But protecting political discourse is important in this country. We treat commercial discourse and political discourse differently for good reason."

When asked if the EFF would support an antipolitical spam law, Cohn replied: "No, I do not think such a rule would be wise. At least at this point, I haven't seen (evidence) that political spam is a sufficient-enough problem. I'm always nervous about attempts to regulate political speech, even with the best of intentions."

Politicians could, of course, regulate themselves. Both the House of Representatives and the Senate have enacted rules governing how their members may use U.S. mail. Unfortunately, most elected representatives show no signs of being able to police their Internet outreach.

Instead of curbing spamming, the House Administration committee in September approved a set of rules explicitly permitting the practice. (Although if they want to spam in the 90 days before this fall's election, House members must seek permission from a six-member commission of their peers.)

Which means that the best response to spamming politicians is the old-fashioned one: vote the bums out of office. Spamming has "been 100 percent a failure in terms of getting anybody elected," said Schwartzman, the Canadian antispam activist.

It's your job to make sure that it stays that way.