Homespun analogies appear to underpin the Supreme Court’s reasoning on critical components of the cybercrime law. The analogies bridge the conceptual disconnect between online and offline behavior, but they also reveal blind spots in the Court’s understanding of how these technologies (and its users, good or bad) behave.
Take for example the court’s ruling on the legality of unsolicited commercial communications, or “spam.” Justice Abad, author of the main decision, likens spam to the unsolicited ads one receives by snail mail, stating coolly that readers “always have the option to delete or not to read them.”
The one-to-one correspondence is appealing in its simplicity, from the Justice who has never shied away from his role as the Court’s pragmatic anchor.
The analogy employed in the cybercrime case is accessible, but ignores both quantitative and qualitative differences between forms separated by centuries of technological development.
If unsolicited mail ads were as massive and virulent as their online “counterparts,” perhaps the Court can be convinced to reconsider its ruling on spam, or at least, use a less awkward analogy. Spam involves not merely incidental burdens but demonstrable harms that must be taken on balance with commercial speech rights.
If unsolicited mail ads were just like spam:
You would get dozens of spam messages a day and the world’s postal system would have to deal with the costs (and the environmental impact) of transporting and sorting billions of such letters.
Spam may be virtual, but its environmental cost is all too real. It is estimated that global spam is responsible for 33 billion kilowatt-hours (KWh) of electricity use. Enough juice to power 2.4 million homes in the United States. All this leads to a significant carbon footprint that taxes the planet’s capacity to support life.
The messages will not arrive at prearranged, manageable intervals. Nor will they be sent in a manner that respects your personal boundaries. The unsolicited ads will reach you while you’re having dinner with your family, or are in the middle of a work meeting. Twenty four hours a day, 365 days a year.
Most of the unsolicited mail ads you receive will have forged return addresses, so you won’t be able to tell senders to stop. Or, if you do manage to reach them, they will treat your notification as a prompt to send you even more unsolicited mail messages. The constant flow of spam that one has to delete or deal with translates into millions, if not billions, of hours in lost productivity.
Forty-one percent of the unsolicited ads you receive will cover “adult” materials. (I doubt if porn in your mailbox is an outcome contemplated in the commercial speech doctrine). Twenty percent of these unsolicited messages, on the other hand, will offer you gray market or illicit drugs.A good portion of those unsolicited mail will not be passive advertisements, but carefully crafted messages designed to trick you into revealing private information—often a preliminary step to defrauding you.
Computer security experts have long suspected convergence between spam and organized crime—people who are uniquely incentivized to build the underground networks required to deploy spam at scales that can be profitable.
There’s a good chance that if you open that unsolicited ad in your mail, you will be infected by a pathogen that will liquefy your bowels and kill you, and then turn you into a zombie.
Much of spam, nearly half by some estimates, is a vector for malware-viruses, Trojan horses, worms and spyware—a bestiary of nasties that will corrupt your data, steal your private information, or turn your computer into a pawn that a hacker can use to send more spam or worse—launch denial-of-service attacks.
Eventually, you will set up a system to deal with the overwhelming inflow, putting all unsolicited messages into a separate box. You will realize that your system can occasionally misidentify legitimate (sometimes very important) messages. This will happen no matter how finely you calibrate your system.
You will end up checking (and rechecking) your box of unsolicited messages to see if anything went astray, or if that all-important report your boss swears he sent you ended up there.
Spam-filtering technology helps but it is constantly locked in a war of escalation with tools at the spammers’ disposal—tools which are easier to develop or deploy, cheaper and in the hands of those who have the initiative.