White Buffalo v. Univ. of Texas, No. 04-50362 (5th Cir. August 2, 2005)
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United States Court of Appeals
Fifth Circuit
FILED
August 2, 2005
Charles R. Fulbruge III
Clerk]
In the
United States Court of Appeals
for the Fifth Circuit
_______________
04-50362
_______________
White Buffalo Ventures, LLC,
Plaintiff-Appellant,
VERSUS
University of Texas at Austin,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Western District of Texas
______________________________
Before Davis, Smith, and DeMoss,
Circuit Judges.
Jerry E. Smith, Circuit Judge:
This case involves the regulation of unsoli cited, commercial mass electronic messages ("emails") (a species
belonging to the larger communication genus often referred to as "spam").[ 1 Because the term " spam" is often
thought of pejoratively, it is important to note that although that term necessarily implies that the email was
unsolicited, the more general meaning does not (1) imply anything about the veracity of the in formation
contained in the email; (2) require that the entity sending it be properly identified or au thenticated; or (3) require
that the email, even if true, be commercial in character. There nonethe less appears to be no consensus as to
the precise meaning of the term "spam," which is sometimes used synonymously with unsolicited "bulk" email. A
set of spam messages sent out together is called an email "blast."
The term "spam" derives from a 1970 Monty Python Flying Circus sketch in which a waitress recites a menu
containing "egg and spam; egg ba con and spam; egg bacon sausage and spam; spam bacon sausage and
spam; spam egg spam spam bacon and spam; spam sausage spam spam bacon spam tomato and spam . . . ."
See Roger Allen Ford, Comment, Preemption of State Spam Laws by the Federal CAN-SPAM ACT, 72 U. Chi. L.
Rev. 355, 355 n.1 (2005) ( citing David Crystal, Language and the Internet 53 (Cambridge 2001)).]1 Plaintiff
White Buffalo Ventures, LLC ("White Buffalo"), operates several on line dating services, including longhornsin
gles.com, which targets students at the Uni versity of Texas at Austin ("UT"). Pursuant to its internal
anti-solicitation policy,[ 2 UT has a general policy against solicitation, which it articulates in the Rules and
Regulations of the Board of Regents of the University of Tex as System ("the Regents"). Pursuant to that poli cy,
UT, with limited exceptions, prohibits solici tation at and on its facilities and has promulgated specific procedures
dealing with unsolicited email communications, including commercial solicita tions. Under these procedures, when
unsolicited email communications come to the attention of university network administrators ( by way of
complaints, system monitors, or other means), UT takes steps to block or otherwise stop the trans mission of
such emails, with or without notice to the sender, as circumstances permit or warrant.]2 UT blocked White
Buffalo's attempts to send un solicited bulk commercial email.
White Buffalo sought to enjoin UT from excluding its incoming email. The district court denied the injunction. On
cross-motions for summary judgment, the court granted UT's motion and denied White Buffalo's. White Buffalo
appeals, challenging the ruling on the grounds that federal law preempts UT's internal anti-spam policy (the
"Regents' Rules")[ 3 Specifically, White Buffalo contends that UT's regulations are preempted by the Controlling
the Assault of Non-Solicited Pornography and Marketings Act of 2003 (the "CAN-SPAM Act" or the "Act"), 15
U.S.C. 7701-7713, Pub. L. 108-187, 117 Stat. 2619 (2003).]3 and that the policy violates the First
Amendment. Mindful that this case presents several novel issues, the significance of which will grow
proportionally with heightened cul tural and economic reliance on the Internet, we affirm.
We make two determinations. First, we de cide that the CAN-SPAM Act does not pre empt UT's anti-spam policy.
Second, we determine that the policy is permissible under
our First Amendment commercial speech jur isprudence, but we reserve judgment on whether state university
email servers consti tute public or private fora.
I.
A.
The parties do not dispute the facts. UT provides, free of charge, Internet access and email addresses to faculty,
staff, and students at the domain "utexas.edu." Owners of electronic mail accounts can access those accounts
either on-grounds (by means of wireless connections or of wired, authenticated clusters) or remotely (by means
of some other Internet access provider). An owner of a UT user account may, for example, log on from any
third-party dial-up or broadband service provider and check for email residing on one of UT's 178 email servers.
UT has a policy of blocking many types of incoming spam, irrespective of commercial content or source
authenticity. Under the Re gents' Rules, the technology department (the "ITC") implements procedures (1) to
block incoming unsolicited, commercial emails and (2) to stop the transmission of such emails.[ 4 These
procedures may or may not provide notice to the sender, depending on the circum stances.]4
White Buffalo operates several online dat ing services, including one, called "longhorn singles.com," that targets
UT students. In February 2003, White Buffalo submitted a Public Information Act request seeking all "non-
confidential, non-exempt email address es" held by UT, which responded by disclos ing all qualifying email
addresses. In April 2003, White Buffalo began sending legal com mercial spam to targeted members of the UT
community.[ 5 We presume the legality of these emails based on this record, the parties' agreement, and the
absence of any challenge.]5
UT received several complaints regarding unsolicited email blasts from White Buffalo. UT investigated and
determined that White Buffalo had indeed sent unsolicited emails to tens of thousands of UT email account- hold
ers, at which point UT issued a cease and de sist letter. White Buffalo refused to comply with that letter, so UT
blocked all email in gress from the IP address[ 6 An Internet Protocol ("IP") address is a un ique 32-bit numeric
address, written as numerals separated by periods, identifying each sender or receiver of information traveling
across the In ternet. An IP address has two parts: the identifier of a particular network on the Internet (say, the
first 24 bits) and an identifier of the particular de vice (which can be a server or a workstation) within that
network. In essence, an IP address identifies a single computer; that computer might be an entry point into an
internal network, but that is not important for our purposes.]6 that was the source address for the unsolicited
White Buffalo spam. The filter blocked all email sent from that IP address to addresses containing the
"@utexas.edu" string.
B.
White Buffalo obtained a temporary re straining order ("TRO") in state court. UT re moved the cause to federal
court on the basis of federal question jurisdiction; there the TRO was continued pending a hearing on the pre
liminary injunction. After a hearing in May 2003, the district court denied the injunction. The parties conducted
discovery, and both moved for summary judgment. The district court granted UT's summary judgment motion
and denied White Buffalo's.
II.
A.
1.
This court reviews a summary judgment grant de novo, in accordance with the Fed R. Civ. Proc. 56 analysis that
guides the district court. Ford Motor Co. v. Tex. Dep't of Transp., 264 F.3d 493, 498 (5th Cir. 2001 ). The district
court entered judgment for UT on cross-motions for summary judgment. On re view, the motions are reviewed
independently, with evidence and inferences taken in the light most favorable to the nonmoving party. See id.
We review a district court's preemption determinations de novo. See Baker v. Farm ers Elec. Coop., Inc., 34 F.3d
274, 278 (5th Cir.1994).
2.
The doctrine of preemption stems from the Supremacy Clause,[ 7 " This Constitution, and the Laws of the Unit ed
States which shall be made in Pursuance there of; . . . shall be the supreme Law of the Land . . . ." U.S. Const.
art. VI, cl. 2.]7 which gives federal law precedence over a conflicting state law. See Cipollone v. Liggett Group,
Inc., 505 U.S. 504, 516 (1992). CAN-SPAM's preemption of state law derives from an express provision in the
Act. See 15 U.S.C. 7707(b).
Although a court should begin with the ex pression provided by Congress, it must also "identify the domain
expressly pre-empted."[ 8 Cipollone, 505 U.S. at 517; see also Med tronic, Inc. v. Lohr, 518 U.S. 470, 484
(1996).]8 The fact that Congress has expressly preempted certain activity is plain, but the scope of that express
preemption is not. The power to supplant state law is "an extra ordinary power in a federalist system." Greg ory v.
Ashcroft, 501 U.S. 452, 460 (1991). Preemption radically alters the balance of state and federal authority, so the
Supreme Court has historically refused to impose that altera tion interstitially. See id. The Court has ex pressed
this principle as a presumption against preemption of state law.[ 9 See Cipollone, 505 U.S. at 517-18; see also
Bldg. & Constr. Trades Council v. Associated Builders & Contractors, 507 U.S. 218, 224 (1993) ("We are
reluctant to infer preemption . . . ."); Maryland v. Louisiana, 451 U.S. 725, 746 (1981) (" Consideration under the
Supremacy Clause starts with the basic assumption that Congress did not intend to displace state law.").]9
Supremacy Clause analysis is classic "tie goes to the state" juris prudence, and the existence of an express pre
emption provision does not always plainly de marcate what the federal law expressly preempts.
3.
The district court granted summary judg ment to UT on White Buffalo's claim that the CAN-SPAM Act preempts
ITC's anti-spam regulations. The court premised its holding on four propositions: (1) that the "purposes" of
CAN-SPAM, as determined by reference to the statute and the accompanying Senate Re port, suggest that
Congress did not mean to preempt technological approaches to combat ing spam; (2) that 7707(c) specifically
ex empts UT from the scope of express preemp tion; (3) that 7707(b)(2), which states that "[s]tate laws not
specific to electronic mail, including State trespass, contract, or tort law" are not preempted, exempts UT's
anti-spam policy because that policy is part of a larger set of anti-solicitation rules; and (4) that UT's ITS policy is
not a "statute, regulation, or rule of a State or political subdivision of a state" and is therefore not preempted by
7707
(b)(1). We do not organize our discussion around these four propositions ( because the appellate briefing
renders an alternate organi zation more desirable), but we discuss each in its appropriate context.
To our knowledge, no Fifth Circuit panel has scrutinized any portion of CAN-SPAM, and no court in this country
has considered the legislation's preemption clause. This is there fore an issue of very, very first impression.
In part, CAN-SPAM prohibits fraudulent, abusive and deceptive commercial email, 15 U.S.C. 7703, 7704;
provides for enforce ment of the Act by federal agencies, states, and Internet service providers ("ISPs "), id.
7706; and provides for the issuance of reg ulations to implement the purposes of the Act, id. 7711. The parties
have agreed, in the district court and on appeal, that White Buf falo complied with the requirements of the
CAN-SPAM Act. Its email blasts were not unlawful.
Most relevant to White Buffalo's claim is CAN-SPAM'S preemption clause:
This chapter supersedes any statute, regu lation, or rule of a State or political subdi vision of a State that
expressly regulates the use of electronic mail to send commer cial messages, except to the extent that any such
statute, regulation, or rule prohibits falsity or deception in any portion of a commercial electronic mail message or
in formation attached thereto.
7707(b)(1).
White Buffalo argues that this preemption clause prevents UT from promulgating regula tions to impede the
ingress of longhornsin gles.com emails to utexas.edu users. Accord ing to White Buffalo, because UT is a state
actor and has conceded that White Buffalo's spam is not false or fraudulent, CAN-SPAM preempts the Regents'
Rules authorizing the email filters. White Buffalo provides no au thority beyond 7707(b)(1) in support of this
position.
Matters become more complicated because, in addition to setting forth the preemption clause, 7707 carves
out a set of entities to be exempt from any possible preemptive effect. It states that "[n]othing in this chapter shall
be construed to have any effect on the lawfulness or unlawfulness . . . of the adoption, imple mentation, or
enforcement by a provider of In ternet access service of a policy of declining to transmit, route, relay, handle, or
store certain types of electronic mail messages ." 7707(c).
The district court held that CAN-SPAM does not preempt UT's anti- solicitation policy. It noted that 7707(c)
permits Internet service providers to employ protection measures, and it held that UT belongs to that set of
service providers. The court also relied on Congress's acknowledgment of "the problems associated with the
rapid growth and abuse of unsolicited commercial email [that] cannot be solved by Federal legislation alone" but
that will also require the "development and adoption of technological approaches" to serve the goals of the Act.
See 15 U.S.C. 7701(a)(12). The court found that "[t]he Act . . . does not pre clude a state entity like UT from
using techno logical devices [such as] spam-filters to con serve server space and safeguard the time and
resources of its employees, students, and fac ulty." White Buffalo Ventures, LLC v. Univ. of Tex. at Austin, No.
A-03-CA-296-SS, 2004 WL 1854168, at *4 (W.D. Tex. Mar. 22, 2004).
There are two competing interpretations, both rooted firmly in the text of the Act, of the degree of authority state
actors may wield in response to commercial spam. Under the first, state entities may not regulate commercial
speech except where that regulation relates to the authenticity of the speech's source and content. Under the
second, state entities may implement a variety of non-authenticity relat ed commercial speech restrictions,
provided the state entity implementing them is an "In ternet access provider."
As a result of Congress's apparent failure to contemplate this question, we must not in fer preemption. The
textual ambiguity trig gers the strong presumption against such a finding, and we cannot be sure whether UT's
regulations fall within the ambit of the express preemption clause. UT may therefore imple ment the Regents'
Rules without violating the Supremacy Clause.
B.
1.
UT argues that CAN-SPAM does not pre empt the ITC policy (1) because the Act does not displace the state's
ability to supplement federal law and (2) because CAN-SPAM pre empts state rules that relate to the sending,
rather than the receipt, of unsolicited commer cial emails. Section 7707( b)(1) carefully spe cifies state political
subdivisions as falling within the scope of its preemption, and UT is a public school.[ 10 UT argues that ITS is not
a political subdi vision of the state. This argument is meritless, as we explain in part II.B.3, infra.]10
In a vacuum, the provision is explicit about the types of policies CAN-SPAM preempts. In layman's terms, state
entities may not regulate the use of electronic mail to send commercial spam except where those rules relate to
source and content authenticity. UT emphasizes Congress's choice to use the word "send" in the statute. As a
result, UT argues, CAN- SPAM does not preempt its regulation of "received" emails. We decline to imbue the
word "send" with the particular significance UT urges.[ 11 UT posits that CAN-SPAM regulates not the "receipt" of
email, but the " sending" of it. UT then contends that the Regents' Rules control the " receipt" of email. Section
7707(b)(1) preempts state law regulating "the use of electronic mail to send commercial messages." All email
(and all " snail mail," for that matter) is both "sent" and "received."
The event triggering preemption is that the email was sent, not the particular identity of the entity sending it. We
do not mean to say that " send" and "receive" never have more specialized meanings in the statute, but only that
the gram matical construction of this particular provision suggests emphasis should not be placed on that
distinction here.]11
2.
CAN-SPAM does not preempt the Reg ents' Rules, because 7701(b)(1) is in tension with plain text found
elsewhere in the Act, and that tension triggers the presumption against preemption. The district court proper ly
sought to interpret 7707(c), which reads, "Nothing in this Act shall be construed to have any effect on the
lawfulness or unlaw fulness . . . of the adoption, implementation, or enforcement by a provider of Internet Access
service of a policy of declining to transmit, route, relay, handle, or store certain types of electronic mail
messages." In finding no express preemption, the court both (1) averred that the ITC policy may not constitute a
"statute, regulation, or rule of a
State or political subdivision of a state," 7707(b)(1), and (2) noted that UT is a "pro vider of Internet access."
Any suggestion along the lines of (1)-that an ITC policy does not constitute a policy of a state subdivi sion-is
incorrect and requires little explana tion. ITC implements the directives of, and operates pursuant to the authority
of, the Board of Regents; its policies therefore con stitute rules of a state subdivision.[ 12 In a related passage,
the district court stated that " the Board of [Regents] Rules governing so licitation using university facilities
cannot be said to be specific to electronic mail since it regulates all forms of solicitation." We need not decide this
issue, because we have alternate grounds of mak ing our preemption decision.]12
We therefore confine ourselves primarily to the discussion of (2). The district court stated that "UT is certainly a
provider of Internet ac cess service to its students, if not to its em ployees and faculty, so it is expressly author
ized under the statute to implement policies declining to transmit, route, relay, handle or store spam."
The district court says "certainly" without any reference to the definition provided in the statute. Congress, in
fact, imports that defini tion wholesale from a statutory predecessor, the Internet Tax Freedom Act : "[A] service
that enables users to access content, informa tion, electronic mail, or other services offered over the Internet,
and may also include access to proprietary content, information, and other services as a part of a package of
services offered to consumers." 47 U.S.C. 151.
We doubt that those legislators responsible for passing the Internet Tax Freedom Act gave serious consideration
to the situation the in stant facts present. UT indeed provides Inter net Access Service-any time somebody sits
down at a computer terminal on campus-but users need not check their UT email from UT network computers,
because they can access the email server remotely. Nonetheless, status as an "Internet Access Provider" does
not ap pear to turn on the fraction of access conduct ed remotely, and we are hard-pressed to find that providing
email accounts and email ac cess does not bring UT within the statutory definition borrowed from the Internet Tax
Freedom Act.[ 13 It would be an unusual policy to allow pri vate, but not public, educational institutions to act as
custodians for the interests of its online com munity. The prudence of the policy, however, does not drive our
determination that UT should be considered an Internet Access Provider under the Act.]13 We therefore decide
that UT falls within the ambit of 7707(c).
D.
We analyze this issue using a Venn dia gram,[ 14 A Venn diagram uses circles to represent sets, with the
position and overlap of the circles indicating the relationships between the sets.]14 the intersecting area of which
Con gress did not anticipate-where the state enti ty is itself the provider of Internet access. In that area resides
activity that Congress has both expressly preempted and expressly ex cepted from preemption analysis. Such
ten sion, created by the text of the statute, leaves us unwilling to overrule the strong presump tion against
preemption . The Regents Rules are valid under the Supremacy Clause.
III.
A.
White Buffalo contends that the district court erred in granting summary judgment on its First Amendment claim.
Whether UT has violated White Buffalo's First Amendment rights turns on the resolution of the four-part
commercial speech test in Central Hudson Gas & Electric Corp. v. Public Service Com mission, 447 U.S. 557
(1980). We review First Amendment determinations under the commercial speech doctrine de novo. See Moore
v. Morales, 63 F.3d 358, 361 (5th Cir. 1995). Resolving this issue in favor of UT, we decline to reach the issue of
whether UT's email servers constitute public fora.[ 15 In other words, we consider two hypothetical situations: one
in which the UT servers are public fora, and one in which they are not. If the servers are not, then the First
Amendment question is eas ily resolved-if a server is a private forum, the government may regulate the speech
so long as it is viewpoint-neutral. In the alternative, if a server is a public forum, we apply Central Hudson. If we
determine that this particular regulation would satisfy either situation, we need not resolve the dicey but
admittedly important question of the public versus private forum status of public uni versity email servers.]15
B.
Commercial speech is "expression related solely to the economic interests of the speaker and its audience."
Central Hudson, 447 U.S. at 561. No one seriously disputes the com mercial character of the speech at issue
here.
In Central Hudson, the Court invalidated portions of state regulations banning commer cial advertising that
promoted the use of elec tricity. See id. at 572. The Court determined that the government's action was more
exten sive than necessary to promote the state's sub stantial interest in energy conservation. Id. at 569-70. In so
doing, the Court announced a four-part test to evaluate the legality of com mercial speech regulation: (1)
whether the speech is unlawful or misleading; (2) whether the government's expressed interest is sub stantial; (3)
whether the state action directly promotes that interest; and (4) whether the state action is more extensive than
necessary to promote that interest. See id. at 566.
1.
Under the first Central Hudson prong, we must determine whether the speech is unlaw ful or misleading. See id.
Both parties agree that White Buffalo's commercial solicitations are legal and that they contain factually accur ate
information.
2.
Under the second Central Hudson prong we must assess the " substantiality" of the gov ernment's proffered
interests. See id. UT ad vances two primary interests: (1) safeguarding the time and interests of those with UT
email accounts ("user efficiency") and (2) protecting the efficiency of its networks and servers ("server
efficiency"). We distinguish between the two interests for reasons that are important under the fourth prong of
the Central Hudson analysis.
For purposes of evaluating the summary judgment, we acknowledge as substantial the government's
gatekeeping interest in protect ing users of its email network from the hassle associated with unwanted spam.
Also sub stantial is the "server efficiency" interest, but it must independently satisfy a "goodness of fit" inquiry
under the fourth prong of Central Hudson. "Suffer the servers" is among the most chronically over-used and
under-sub stantiated interests asserted by parties (both government and private ones)[ 16 The opinion in eBay,
Inc. v. Bidder's Edge, Inc., 100 F. Supp. 2d 1058 (N.D. Cal.2000), is one of the first and perhaps the most
conspicuous in stance of this rationale. The eBay court held, on a trespass to chattels theory, that if the
defendants crawling "activity is allowed to continue un checked, it would encourage other auction aggre gators to
engage in similar recursive searching of the eBay system such that eBay would suffer ir reparable harm from
reduced system performance, system unavailability, or data losses." Id. at 1066. See also note 25, infra.]16
involved in
Internet litigation, and rules imposed pursuant to such interests require more than a judicial rubber-stamp, for
reasons we explain in part III.B.4. b, infra.
3.
Pursuant to the third Central Hudson prong, we must next determine whether the UT policy directly advances
both proffered substantial interests: (1) UT's interest in sani tizing the network for its email account-hold ers (user
efficiency) and (2) its interest in preserving the operating efficiency of its serv ers (server efficiency). See id. at
569. Again, there can be no serious dispute that UT's anti- spam policy, which blocks specific incoming
commercial spam after account-holders have complained about it, directly advances both interests. One can
hardly imagine a more dir ect means of preventing commercial spam from appearing in account-holders' inboxes
and occupying server space than promulgating a policy that excludes such material from the email network.[ 17
Neither party provides caselaw in support of its position on the question of substantial interest. The district court
relied on extensive comments in the Senate Report offered in support of the CAN-SPAM Act.]17
4.
Having resolved the first three Central Hudson questions in UT's favor, we must finally conduct the most difficult
in quiry-whether the ITC policy is no more ex tensive than necessary to achieve at least one of the two
substantial state interests. See id. at 569-70.[ 18 For an explanation as to why only one sub stantial interest
need be satisfied, see part III.C, infra.]18 White Buffalo contends that UT's anti-spam policy fails to meet this final
re quirement, although White Buffalo's precise objection is hard to discern. It appears to pro test the over-
restrictiveness of the policy on the ground that it is impossible to articulate precisely what the UT regulation is.
To the contrary, UT (relying on the district court's disposition of the issue) reasons that the policy is narrowly and
specifically drawn to protect the system and users from only those unsolicited, commercial emails that have been
identified as problematic by complaint, system monitors, or other means. The restric tion is tailored by blocking
only those emails from specifically identified ISP addresses. Al though we may not agree with all of UT's
characterizations of its policy, we are aware of what that policy is. White Buffalo's objection in this regard is
without merit.
a.
With respect to the first proffered substan tial state interest, which is promoting user ef ficiency,[ 19 By "user
efficiency" we mean the ability of UT email account holders to go about their daily business without constantly
having to identify and delete unwanted commercial spam.] 19 the ITC policy is no more extensive than
necessary. We have little problem af firming the proposition that, to keep commun
ity members from wasting time identifying, deleting, and blocking unwanted spam, UT may block otherwise lawful
commercial spam (as long as the blocks are content- and viewpoint-neutral).[ 20 UT Vice President of
Information Technol ogy Daniel Updegrove testified at the May 20, 2003, preliminary injunction hearing:
[A]t a minimum there's the time it takes to configure an e-mail filter, running the risk that legitimate messages will
be filtered errone ously or one by one deleting the offending messages. And there's an ongoing question of how
much of this message you have to ac tually encounter in order to decide that it's spam.
He furthered affirmed that if UT "wasn't allowed to block or was somehow required under the Con stitution to
unblock these 1700 some odd sites, that it would severely degrade an employee's abil ity to do their job[.]"] 20
b.
We reject, however, the proposition that the ITC policy is no more extensive than nec essary to secure the
state's second substantial interest, which is the efficiency of its serv ers.[ 21 This "poor fit" could be rephrased as
an ob jection under several other Central Hudson prongs. For example, the Supreme Court has made a similar
analysis under the third prong. In Greater New Orleans Broadcasting Ass'n, Inc. v. United States, 527 U.S. 173,
188 (1999), the Court stated:
The third part of the Central Hudson test asks whether the speech restriction directly and materially advances
the asserted govern mental interest. This burden is not satisfied by mere speculation or conjecture; rather, a
governmental body seeking to sustain a re striction on commercial speech must demon strate that the harms it
recites are real and that its restriction will in fact alleviate them to a material degree. Consequently, the
regulation may not be sustained if it provides only in effective or remote support for the govern ment's purpose.
We have observed that this requirement is critical; otherwise, a State could with ease restrict commercial speech
in the service of other objectives that could not themselves justify a burden on commercial expression.
(Internal citations and quotation marks omitted.) The prong under which we make our observations matters little
for Central Hudson analysis, how ever, because the Supreme Court has stated that "[a]ll are important and, to a
certain extent, inter related: Each raises a relevant question that may not be dispositive to the First Amendment
inquiry, but the answer to which may inform a judgment concerning the other three." Id. at 183.]21 One might
persuasively present evidence that that spam, taken in its entirety, affects the efficiency of email servers; indeed,
that appears to be what UT has proffered; it submits a list of between 1,500 and 2,000 blocked IP addresses.[ 22
This information is contained in Exhibit 4. There are two constituent lists-one of blocks by host address and one
of blocks by IP address. ]22 Updegrove testified at the May 2003 Preliminary Injunction hearing that UT's
"system" would not be able to func tion without these blocks. Such testimony is common where server efficiency
is offered as a state or private interest in Internet litigation.
We must nonetheless consider the evidence in the light most favorable to the nonmovant. See Ford Motor Co.,
264 F.3d at 498. More over, the challenged regulation should indicate that its proponent "carefully calculated the
costs and benefits associated with the burden on speech imposed by its prohibition." Cin cinnati v. Discovery
Network, Inc., 507 U.S. 410, 417 (1993) (internal citations and quo tations omitted ).
There is record testimony that White Buf falo can send a restricted volume of email at off-peak times, so as not
to impede server efficiency. Moreover, UT's list of blocked IP addresses does not make any of the types of
distinctions that Congress obviously thought important-distinctions between, say, (1) truthful commercial
messages and obscene images, (2) commercial messages with an un subscribe feature and commercial
messages without one, (3) emails sent during peak traf fic times and those that are not, and (4) email that
originates from an authentic source and email that does not. The rub is that although the record demonstrates
that unblocking all spam might compromise network efficiency, it says nothing about the effects of allowing lawful
time- and volume-restricted commer cial spam to enter UT's email network.
An exchange at the preliminary injunction hearing between UT's attorney and Updegrove most vividly illustrates
the poor fit between UT's restrictions and the substantial interest in server efficiency:
Q: Well, [White Buffalo's attorney] is saying, well, "Hey, I can send this at night when the employees aren't there. I
won't send too many at one time. It won't affect your system that much because of that. Now, is there a reason
why that's not an acceptable proposition."
A: Well, if something is wrong, just be cause there's a little bit of it doesn't make it right. If a university makes
resources available, misusing a little bit of those re sources isn't correct.
For the server efficiency rationale to pass muster under the fourth prong of Central Hud son, spam filters must
block a set of spam that poses a legitimate threat to server efficiency.
This is not to say that UT need draw gran ular distinctions between types of spam where drawing them renders
filtering economically infeasible.[ 23 For example, as Updegrove testifies, it would be impossible to filter spam
based on whether the originator of the email was a legiti mate business. The email filters could not auto mate this
task.]23 It, however, is to say that where UT may easily use certain types of fil ters- e.g., time of day and volume
fil ters-UT should use them rather than cate gorically exclude all unsolicited commercial bulk email. If those types
of filters are eco nomically infeasible, that evidence should be in the summary judgment record. The current
record reflects only that UT does not employ such filters because legal spammers are sub jectively "misusing"
the system, not because they are overburdening it.
Our conclusion that, for summary judgment purposes, there is an insufficient fit between the ITC policy and the
asserted interest in server efficiency is of little moment in the spam context. The server efficiency interest is
almost always coextensive with the user ef ficiency interest, and the fit is sufficient for the latter; but declaring
server integrity to be a substantial interest without evidentiary sub stantiation might have unforseen and unde
sirable ramifications in other online contexts.[ 24 This is no more than a cautionary note, the importance of which
has become more plain as a result of our increasing familiarity with litigation involving the Internet. For example,
in the many of the " digital trespass" cases, where a plaintiff bases a trespass to chattels theory on a defen
dant's unauthorized use of a network/computer system, the court will merely conclude, without evidence or
explanation, that the allegedly unau thorized use burdened the system.
One of the most prominent such statements occurs in Compuserve v. Cyber Promotions, Inc., 962 F. Supp.
1015, 1022 (S.D. Ohio 1997) ("To the extent that defendants' multitudinous elec tronic mailings demand the disk
space and drain the processing power of plaintiff's computer equipment, those resources are not available to
serve CompuServe subscribers. Therefore, the value of that equipment to CompuServe is dimin ished even
though it is not physically damaged by defendants' conduct."). Many courts mention sys tem degradation and
perfunctorily cite Compu serve, but focus primarily on things such as de cline in customer goodwill, worker
productivity, and the like. See, e.g., Am. Online, Inc. v. IMS, 24 F. Supp. 2d 548, 550 (E.D. Va. 1998) ("[Plain
tiff's] contact with [ Defendant's] computer net work was unauthorized; and [Plaintiff's] contact with [Defendant's]
computer network injured [De fendant's] business goodwill and diminished the value of its possessory interest in
its computer network."); Am. Online, Inc. v. LCGM, Inc., 46 F. Supp. 2d 444, 452 (E.D. Va. 1998) (citing Compu
serve language).
Since eBay was issued, however, courts have become a little more circumspect about using the "slippery slope"
argument. See Ticketmaster Corp. v. Tickets.com, Inc., 2003 WL 21406289 (C.D. Cal. Mar. 7, 2003) (" Since the
spider does not cause physical injury to the chattel, there must be some evidence that the use or utility of the
computer (or computer network) being 'spider ized' is adversely affected by the use of the spider. No such
evidence is presented here. This court re spectfully disagrees with other district courts' finding that mere use of a
spider to enter a pub licly available web site to gather information, without more, is sufficient to fulfill the harm re
quirement for trespass to chattels.").
This rationale, with little to no evidentiary sub stantiation, has likewise justified claims under the Computer Fraud
and Abuse Act ("CFAA"), 18 U.S.C. 1030. See, e.g., Hotmail Corp. v. Van$ Money Pie, Inc., 1998 WL 388389,
34 (N.D. Cal. Apr. 16, 1998) (unpublished) ("The evidence supports a finding that plaintiff will likely prevail on its
[CFAA] claim and that there are at least serious questions going to the merits of this claim in that plaintiff
[including] that defendants took such actions [ utilizing system capacity] knowing the risks caused thereby to
Hotmail's computer system and online services, which include risks that Hotmail would be forced to withhold or
delay the use of computer services to its legitimate sub scribers; that defendants' actions caused damage to
Hotmail; and that such actions were done by defendants without Hotmail's authorization."). Interestingly, the court
conducting the most thor ough inquiry into actual system damage did so in the process of declaring the issue to
be one of tri able fact, precluding summary review. See Am. Online, Inc. v. Nat'l Health Care Discount, Inc., 121
F. Supp. 2d 1255, 1275 (N.D. Iowa 2000). Even in the CFAA context, however, courts rely on the "loss" rather
than the "damage" language in the statute. See, e.g. EF Cultural Travel BV v. Explorica, Inc., 274 F.3d 577, 585
(1st Cir. 2001), a maneuver that almost mirrors courts' tendency to favor the server efficiency interest in name
but the user efficiency interest in substance.] 24
C.
A governmental entity may assert that a statute serves multiple interests, and only one of those need be
substantial. See Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 71-73 (1983). The ITC policy survives First
Amendment scrutiny despite its failure to jus tify that policy in relationship to the server efficiency interest. We
therefore decide that UT's anti-spam policy is constitutionally per missible under Central Hudson. Because we so
decide, we need not address what type of First Amendment forum a public university email network constitutes.
The summary judgment is AFFIRMED.