The Washington PostDemocracy Dies in Darkness

Is spam free speech?

(Freezelight/ <a href="">Flickr</a> )

Every time somebody tries to discuss Twitter’s dismal abuse policies — which have left thousands of people open to threats and other harassment — she (or he!) is met with the same retort: Curbing abuse would limit speech. Limiting speech would impinge on perceived First Amendment rights. And impinging on First Amendment Rights, even when they belong to someone sending death threats or photos of dismembered bodies, would eventually topple all that is good and decent in America.

Except …  there’s actually a precedent for this, and it’s one that few Americans would want to live without. Ready? Just a few years ago, we had a very similar argument about … spam.

Is spam free speech? Do e-mail spammers have a constitutional right to send it — or do e-mail services and Internet providers have the right to block, i.e. censor, all those offers of male enhancement and foreign lottery winnings?

“‘Free speech’ is really just disagreement on who should judge what deserves to get deleted or silenced,” the legal scholar and public thinker Sarah Jeong wrote in a series of tweets Wedenesday. “It’s a principle of wide toleration except for *narrow* exceptions at the fringes, exactly because we don’t trust each other to decide.”

Case in point? “The incredible accommodation that the web has made to fighting spam has become mostly invisible,” Jeong tweeted. “It’s not ideal but… it’s a thing. that happened. that people just take for granted.”

Most of us do, in fact, take the existence of spam filters for granted, without realizing exactly how much work they do on the daily. According to one 2013 estimate, nearly 100 billion spam e-mails are sent every day, accounting for two-thirds of all e-mail traffic. And yet, if you navigate to your inbox right now, it’s unlikely that two-thirds of your messages are junk mail; an ever-more-complex web of spam flags and authentication systems selectively reroutes or deletes some of your messages, with the result that — on corporate e-mail accounts, at least — fewer than one in five delivered messages are spam.

Now is that “censorship” or something a little less insidious? As recently as 2008, op-ed writers and radical speech advocates were arguing the former.

“The 1950s anti-communist blacklists, assembled without due process, have essentially returned in a new form on the Internet,” James McGrath Morris wrote in The Washington Post, incensed that his newsletter (the “Biographer’s Craft”) got snagged in a spam filter.

Filters, Morris argued, could be used to censor even legitimate phrases or topics on an administrator’s whim, without notifying senders or their would-be recipients. Some spam-vocates took that logic even farther: Jeremy Jaynes, who in 2003 became the first man convicted of felony spamming, appealed his conviction on the grounds that the 10 million ads he sent for sham products were, in fact, protected by the First Amendment. Virginia’s Supreme Court initially disagreed with him but later reversed its own ruling — bulk anonymous e-mails, the court concluded, could sometimes be vehicles for protected speech.

And that makes sense, right? The court didn’t want to criminalize all anonymous e-mails, just as Twitter wouldn’t want to ban all anonymous tweets. Moreover, when Virginia courts were considering Jaynes’s case in the early and mid-aughts, spam filters were still blunt tools, prone to miscategorizing e-mails nearly as often as not: early filters frequently just flagged suspicious phrases, regardless of context, or blacklisted entire networks rather than risk receiving spam.

But as anti-spam technology developed, its bumps and hiccups softened. First the spam disappeared, and then the filter did. In 2007, Gmail published a gleeful video celebrating the power of its spam filters. In the current version of the service, you can easily forget the spam folder even exists — it’s buried in the remotest depths of the left navigation bar, somewhere below “Circles,” “Chats,” and several other arguably less important things.

While there’s little hard data on the amount of legitimate e-mail that gets mislabeled as spam, a quick jaunt through the 270 e-mails in my personal spam folder would seem to suggest it’s not a profound problem, and certainly not profound enough to ban spam filters altogether. I missed one episode of The Listserve, I guess, and the weekly newsletter from a local movie theater. But aside from that?

This is, presumably, what Jeong and others mean when they invoke spam as “an existing paradigm” for Internet harassment: Both have documented harms, speech implications … and fair, effective technological solutions, should Twitter (like Gmail and other e-mail providers) choose to develop them. In the words of Newsweek engagement editor Lainna Fader: “There is no technological solution that will end online abuse. But there are technical improvements Twitter could try that may greatly decrease the instances of harassment.” (Emphasis mine.)

That’s neither an easy nor a straightforward process, and it’s bound to come with the kind of initial — and indeed, ongoing — bumps that plagued spam filters when they were first introduced. But to suggest that those issues with earlier versions should prevent the development of a technological solution entirely, or that a technological solution doesn’t exist, doesn’t mesh with history. Twenty years ago, Internet-users began demanding spam filters.

And increasingly, it would seem, Twitter users are looking for a similar protection against harmful speech. Just Wednesday, thousands of users hijacked the hashtag #askCostolo — named for Twitter CEO Dick Costolo — to complain about the platform’s harassment policies. Wrote one particularly astute user:

“Why is it that spammers get banned within minutes, but stalkers and people threatening violence don’t get banned at all?”

Costolo, needless to say, didn’t answer.