In the last days of the longest and most expensive presidential campaign ever, both sides are using email aggressively. And why not? Email is cheap, campaigns are desperate, and they are exempt from CAN-SPAM regulations.
That’s right. Political and religious speech are explicitly made exempt within CAN-SPAM’s regulations. When this law was framed, the exemption allowed it to avoid significant First Amendment tests.
Legal exemption or not, subscribers decide what is spam as far as internet service providers are concerned. And though their complains don’t have legal weight because of the CAN-SPAM law’s exemption for political speech, they are causing some campaign communications to be blocked en masse by ISPs. (Campaigns are starting to change IP addresses to avoid such filtering.)
Obama Emails Liberally, Catches More Heat
ComputerWorld and The Denver Daily News report that ISPs have started to filter Obama emails as a result of subscriber complains. It appears his campaign has matched names of registered Democrats to email addresses provided by third-party vendors. In industry terms, they’ve performed an email append.
Early in the election, the Obama campaign had sloppy email registration processes. One could register any email address and person name, which would be automatically subscribed to emails without any confirmation process. So, someone theoretically could take your email address and enter it through the Obama site, along with firstname = “Fat” and lastname = “Slob,” and the campaign would send you messages that began, “Dear Fat Slob …”
McCain Emails More Conservatively, But Still Draws Negative Opinions
ISPs report fewer complaints about the McCain campaign’s email strategy, and note that his team is sending a dramatically lower volume of email.
However, the Denialism blog complains about McCain’s opt-out mechanism, which requires you to affirm your support for McCain before you can leave:
“The options are:
-I am a McCain Supporter but don’t wish to be contacted until closer to the election.
-I am a McCain Supporter but I am receiving too many emails. Please only send me newsletters and urgent alerts.
-I am a McCain Supporter but do not wish to receive email any longer.
-I am no longer a McCain Supporter and want to be taken off the email list.
They should add an option for me that reads:
-I never signed up for your stupid email list. I never supported you, except when you passed McCain-Feingold, and I’d vote for Tina Fey before Sarah Palin. Please take me off your list.”
Political speech or religious speech could imaginably be regulated. Such organizations are already restricted from sending junk faxes. That’s a pretty close analog. And even protected speech can be regulated from becoming a nuisance.
This May Be the Modest Cost of Democracy
The prospect of some future restriction of legitimate speech seems more serious than receiving political spam during campaigns. The occasional nuisance of unchecked political emails is a small cost for unfettered political speech.
Most of the time, politicians are sensitive to public opinion about such practices; just not when they’re in the last days of a campaign.