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Legal Issues Regarding Harassing Email

University Policy

When Richard Machado sent his email to 49 Asian students at the University of California, Irvine (September, 1996) there were few legal restrictions on what individuals could do with electronic mail.

The Office of Academic Computing (OAC) at the University of California, Irvine (UCI) had implemented a Computer and Network Policy that all users were required to read before being given an account. Access to email is considered to be a privilege, not a right. Compliance with the policy is expected for all users, and failure to comply can result in dismissal or revocation of this privilege. The OAC lists among possible consequences the "temporary or permanent loss of computing and/or network privileges and/or Federal or State legal prosecution." Each user signs a document indicating they have read this policy.

The policy states that its purpose is to assure that:

  • The University community is informed about the applicability of policies and laws to electronic mail,
  • Electronic mail services are used in compliance with those policies and laws,
  • Users of electronic mail services are informed about how concepts of privacy and security apply to electronic mail, and
  • Disruptions to University electronic mail and other services and activities are minimized.

According to the policy, "using computers or electronic mail to act abusively toward others or to provoke a violent reaction, such as stalking, acts of bigotry, threats of violence, or other hostile or intimidating ‘fighting words.’ Such words include those terms widely recognized to victimize or stigmatize individuals on the basis of race, ethnicity, religion, sex, sexual orientation, disability, and other protected characteristics." Masking or falsifying one’s identity in an email is also listed as a violation of the policy, and is prohibited.

The OAC did not have a specific procedure to follow for each case of computer misuse that might arise. It did have an informal agreement worked out with the Dean of Students. The Dean of Students’ stance was that, once students had been admitted to the college, they have access like any other student to the various services on campus. If rules regarding use of those services are violated, they can be revoked. The OAC deals directly with any such cases, without contacting the Dean until it is an issue that is beyond the scope of the computer use policy. In most cases, once a problem is identified, the OAC contacts the person, gets their attention by locking their access to their email account, and holds an internal hearing for the student with a few faculty and staff.

Federal law

At the time of this incident (1996), there were no California laws regarding email use. Under federal law any threats of force that had the intention of interfering with specifically protected activities (e.g. voting, access to public education), was illegal. This law was called the Federally Protected Activities Act of 1968. Enacted in response to violent attacks on civil rights workers in the South, the act does the following:

    • Prohibits intentional interference, by force or threat of force, with certain specified constitutional rights, including voting and election activities, participation in programs administered or financed by the United States, Federal employment, and jury service.
    • Prohibits intentional interference with enrollment in a public school or college, interstate travel by common carrier, use of restaurants, lodging, gas stations, public entertainment facilities, and other establishments serving the public, State jury service and interference with employment (whether public or private), where the interference is motivated by discrimination on the basis of race, color, religion, or national origin. It also protects individuals who are helping others enjoy the free exercise of these rights.

The law does not mention the means by which this interference takes place, and so could be used to cover interference by means of electronic mail.

To qualify as illegal hate speech, a piece of speech must pass what is called the Brandenburg test. This is based on a case of Ku Klux Klan (KKK) speech in Ohio (Brandenberg vs. Ohio, 1969) in which Brandenburg invited a reporter to a KKK rally and the resulting video (with Brandenburg speaking) was shown on local and national news. The test was offered by the Supreme Court in overturning the Ohio law that made Brandenburg's action in giving the speech illegal. The test states that we cannot declare speech illegal, "except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."