Puzzling logic: the constitutionality of Congress's "logic puzzle" e-mail filters.

• Author: Hackett, Vanessa K.

"E-mail has become the preferred way to contact your representatives in today's society. Postal mail takes too long and must be screened, and not everyone can make a personal visit or get through with a phone call. Now, some representatives want to make even that form of communication more difficult. It is ironic that, in the year when ethics issues have plagued Congress because of relationships with high-paid lobbyists, instead of shutting down that gravy train, Members of Congress have decided to shut their constituents out.

Congress long ago did away with the literacy test qualification to vote. Apparently, Members of Congress acknowledge you should not have to pass a test to vote for them, but they do not want you to contact them without taking a quiz." (1)

"I think what we-the collective we-have done the past few years has been to introduce volume into the discussion, but we have not substantially given the people any more voice....

Perhaps more people are involved and politicized but the unintended consequence has been that we have so devalued the available communications channels that they are worthless. We make it easy to assuage or outrage, and in the end, that outrage is impotent-just go to this Web site and click this link to send a letter to your congressperson. Now you're done, your sins are absolved." (2)

1. INTRODUCTION

   Anyone with a Hotmail or Yahoo account is well acquainted with the inconvenience and irritation of e-mail inboxes brimming with unwanted offers of opportunities to earn thousands while working from the comfort of home, ways to improve sexual stamina, or miracle weight-loss pills. (3) Spam, the common term for unsolicited commercial e-mail, has plagued both computer-savvy and technologically-challenged individuals. (4) Most users quickly learn to identify and delete junk e-mail. (5) Although some spammers have devised sophisticated techniques to disguise the true nature of their messages, most spam is relatively simple for recipients to spot and discard. (6) In the workplace, spam is more problematic because it interferes with productivity. (7) To account for this issue, businesses are forced to invest in expensive screening programs that filter the offensive material, while funneling through legitimate messages. (8)

   In response to the inefficiency of sorting genuine constituent e-mail from spam, many congressional members began implementing "logic game" software to facilitate the organization of legitimate messages and block unwanted e-mail. (9) The "logic game" is an additional filter apart from protections previously in place. (10) After completing a webform with contact information and selecting a pre-approved issue, the logic-puzzle feature further compels the correspondent to solve a simple math equation. (11) These logic puzzles are CAPTCHA filters, similar to those used on commercial Web sites such as Ticketmaster or Paypal, which deter automated registration and ensure that the e-mailers are human and not computers with distorted text only humans can decode. (12) CAPTCHAs, named as an acronym for Completely Automated Public Turing Test to Tell Computers and Humans Apart, are automatically generated tests designed to allow humans to pass and computer programs to fail. (13)

   Logic-puzzle filters that limit the messages a congressperson receives implicate fundamental First Amendment concerns, including citizens' freedom of speech and the right to petition the government. (14) When Congress enabled constituents to contact representatives via e-mail in 1995, it arguably turned congressional inboxes into designated public fora. (15) A designated forum, unlike a traditional public forum, is a space that the government affirmatively opens for public discourse and expression. (16) Public forum status greatly limits Congress's ability to restrict messages based on content and imposes a heightened level of scrutiny on time, place, and manner regulations. (17) Although the Supreme Court has refused to expand the concept of traditional public fora, which includes public parks and streets, to encompass modern technologies, congressional e-mail inboxes could qualify as designated public fora because they were specifically instituted to allow the public to communicate with Congress. (18)

   The influx of junk e-mail in congressional inboxes is a valid concern as congressional offices today receive more than 300 million messages a year, close to a 600% increase from 1995. (19) Unfortunately, the logic-puzzle filter purges more than commercial messages: the software also blocks mass petitions from advocacy organizations and prevents individuals with language barriers or learning disabilities from expressing their opinions to their respective elected officials. (20) Congress intended that the filters target lobbyist groups that allow citizens to sign online petitions from their Web sites or send electronic postcards to Members of the House. (21) Of the 8,262 views of the logic-puzzle feature in a single day, only 1,568 of the equations were solved. (22) Although one could attribute this disparity to CAPTCHA's success rate in preventing computers from transmitting e-mail messages, the disparity may also represent the alarming rate at which the filters deter prospective correspondents from participating in the political process. (23)

   This Note will explore the First Amendment implications of the logic-game software filters. (24) It will first examine whether the "Write Your Representative" e-mail system is a designated public forum, and if so, whether the logic games infringe on constituents' First Amendment rights through unlawful content-based or unlawful time, place, or manner restrictions. (25) This Note will then analyze whether the logic-game software's e-mail filter would survive strict or intermediate-level scrutiny. (26) Finally, this Note will consider the policy concerns indicating that alternative measures are necessary to enhance communication between elected officials and the public without obstructing political speech. (27)

2. HISTORY

   1. History of Communication Between the Government and Its People

      Most citizens consider communication technologies such as e-mail and cellular phones as mere modern conveniences, detached from concepts of democracy or political engagement. (28) Communication, however, is a historically significant democratic tool, with the postal system playing an integral role in the formation of the U.S. government. (29) Courts should examine these new devices that facilitate the government's ability to hear the democratic voice within the context of their predecessor, the U.S. mail system. (30)

      Although most countries had instituted state-controlled mail systems by the nineteenth century, the role of correspondence in the United States was uniquely intertwined with the "democratic value of communication between citizens and elected officials, [which] has its roots in the town hall meeting, where ... constituents have been coming together with their elected representatives to discuss the issues that most concern them." (31) Since its creation, constituents have used the mail system to convey their opinions, provide feedback, and praise or reprimand their elected representatives when town meetings were not practicable. (32) With the invention of the telephone, telegraph, and fax machine, a myriad of ways to reach a government official emerged, including the advent of e-mail in the 1990s. (33) During the Clinton impeachment hearings, the volume of constituent e-mail that Congress received increased dramatically from a few dozen per week to over a thousand per day. (34)

      Politicians, eager to court voters, recognized the importance of electronic communication and began to use Web sites and e-mail as an inexpensive and quick grassroots means of gaining political influence. (35) Ironically, despite Congress's frustration with spam and mass e-mails from advocacy organizations, many public figures have used forms of unsolicited political email to reach prospective voters. (36) Although opponents of political spam regulation scoff at the notion that politicians would use such an unpopular device to reach prospective voters, such political spamming is routine. (37)

      Despite the historical role of communication between the public and its governmental representatives in the United States, the Constitution does not guarantee the interaction itself. (38) In Minnesota State Board for Community Colleges v. Knight, (39) the Supreme Court refused to expand the First Amendment protections of free speech, assembly, and petition to encompass the right to a governmental audience. (40) The Court echoed an earlier sentiment in the 1915 case of Bi-Metallic Investment Co. v. State Board of Equalization, (41) which recognized that the government would not be able to function efficiently under such constraints. (42) While government officials may entertain public discourse on matters of general concern, the Constitution does not mandate them to do so, making voting the only recourse for the general public. (43)

   2. Public Fora

      While the First Amendment does not typically safeguard communication between voters and their representatives, the Constitution limits governmental restrictions of speech that occurs in a public forum. (44) Whether the public may use government property for private speech hinges on the classification of the space as a traditional, designated, or nonpublic forum. (45) A traditional public forum is a place which "ha[s] immemorially been held in trust for the use of the public, and time out of mind, ha[s] been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." (46) Streets and public parks are notable examples. (47)

      The Supreme Court has been reluctant to expand the traditional public forum beyond its historical origins. (48) The government, however, can open a nonpublic forum to the public for communicative...