privacy international first-amendment email
What potential lawsuits does the recent Expensify fiasco expose the company to?
<p>As some of you may know just by checking your mailboxes, David Barrett, the CEO of Expensify, recently sent out a political endorsement e-mail to all of Expensify's users (supposedly, 10 million people).</p>
<p>I'm not interested in discussing the (un)professionalism of such an e-mail or the validity of statements contained therein. I'm interested in the fact that it is an unsolicited political e-mail. As a side note, it is not an e-mail that is a call to vote - it is a call to vote for a specific candidate.</p>
<p>The author of the e-mail claims that the First Amendment gives him the right to send it, but this e-mail was sent globally and utilised a database of e-mail addresses of users who have not given consent to receive political messages.</p>
<p>It <em>feels</em> illegal to me, but I don't know anywhere near enough about law to know whether it actually is.</p>
<p>I'm curious as to what possible liabilities did this expose the company to and in what jurisdictions.</p>
<p>Full e-mail content available <a href="https://www.businessinsider.com.au/expensify-ceo-david-barrett-vote-against-biden-vote-against-democracy-2020-10" rel="nofollow noreferrer">here</a></p>

<p>In the United States, at least, this is a pretty easy question.</p>
<p>There are of course plenty of reasons not to <em>enjoy</em> the e-mail. Perhaps the reader gets too much spam. Perhaps the reader is a fascist. But no one who accepts the American conception of free speech should have any trouble intuiting whether sending this e-mail was legal.</p>
<p>Communications in support of a political candidate are at the heart of First Amendment protection. Any suggestion that the e-mail violated the law because it communicated Barrett's electoral preferences is going to be a loser. <a href="https://docs.justia.com/cases/federal/district-courts/ohio/ohsdce/1:2009cv00326/130098/46" rel="nofollow noreferrer"><em>Brinkman v. Budish</em>, 692 F. Supp. 2d 855, 861 (S.D. Ohio 2010)</a> (&quot;First Amendment protection is at its zenith for core political speech which involves interactive communication concerning political change.” (quoting <a href="https://supreme.justia.com/cases/federal/us/525/182/" rel="nofollow noreferrer"><em>Buckley v. Amer. Const. Law Found.</em>, 525 U.S. 182, 186–87 (1999)</a>).</p>
<p>The question of whether users consented is basically irrelevant. Americans do not need permission from the government or anyone else to communicate their positions on presidential elections, dog-catcher elections, or anything else. <a href="https://supreme.justia.com/cases/federal/us/536/150/" rel="nofollow noreferrer"><em>Watchtower Bible &amp; Tract Soc'y of New York, Inc. v. Vill. of Stratton</em>, 536 U.S. 150, 165–66 (2002)</a> (&quot;It is offensive — not only to the values protected by the First Amendment, but to the very notion of a free society — that in the context of everyday public discourse a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so.&quot;).</p>
<p>Even if consent mattered, Expensify's users have presumably all agreed to its <a href="https://use.expensify.com/privacy" rel="nofollow noreferrer">privacy policy</a>, which alerts them that Expensify may send them &quot;electronic newsletters&quot; or &quot;important notices,&quot; two categories of communications that are broad enough to include the e-mail in question. This also means that if Expensify is otherwise compliant with GDPR and other privacy obligations, there probably isn't much of an argument to be made that the e-mail violated any of those laws.</p>
<p>The fact that the e-mail is technically coming from a corporation does not matter, as corporate entities are allowed to take positions on political questions. <a href="https://supreme.justia.com/cases/federal/us/558/310/" rel="nofollow noreferrer"><em>Citizens United v. Fed. Election Comm'n</em>, 558 U.S. 310, 342 (2010)</a> (&quot;First Amendment protection extends to corporations.&quot;). Nonprofit organizations are generally an exception, as they essentially surrender First Amendment protection in exchange for their tax exemptions.</p>
<p>One could attempt to argue that the e-mail is somehow an in-kind donation to the campaign. That argument would fail, but even if it were viable, that would not make the e-mail illegal; it would merely require Expensify to report it consistent with campaign-finance regulations.</p>
