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Re: recent decisions in EEC commissions?

  • From: Anders Andersson < >
  • Date: Sun, 15 Jul 2001 08:36:42 +0200 (MET DST)

Roland Perry roland@localhost wrote:
>We have attempted to argue that *every* Internet user has by default a
>"clear objection" to the use of this method, and that only by opting-in
>can he demonstrate that he has overturned that default objection.
>The UK Govt accepted this when transposing the DSD, especially as it's
>already a breach of the Data Protection Directive|Act to process my
>personal details (email address) unfairly [#].

Did you bring up the argument that your electronic mailbox is your
_private property_, and that e-mail messages received _consume_
your material resources in a way that is fundamentally different
from forcing a few �g of air out of your physical mailbox (like
paper mail does)?  Did the UK Govt understand this argument, and
was it essential in convincing them, or did they perhaps accept
your position simply because they hadn't developed a position of
their own?  Understanding their reasoning is important in order
to find the most useful arguments.

In my opinion, the right of ownership to computing resources is
central to the issue of unsolicited e-mail, and I believe there
is already legislation in place to deal with misappropriation of
physical facilities such as communication lines, disk space, and
even floor space.  You can't park your car on my driveway without
my permission, and you can't plug your phone into my wall outlet
without my permission.  The fact that the ground isn't physically
damaged by your tires or that the telephone wires in my house are
left intact is irrelevant; the physical property I own includes a
_function_, not just the gravel and the copper wires.  If you use
that function for your own purposes, you are tampering with my

Of course, I can give implicit permission to unexpected visitors
to park on my driveway long enough for them to present themselves
at the door, and I can request that they leave whenever I want.
If they refuse to leave, or they begin using my driveway at night
or when I'm away from home, I can sue them for trespassing (or
something).  There is no such thing as a "default permission to
park on anybody's driveway until the owner objects to it", and
the government would be in serious trouble if they tried to
legislate such a permission into existence.  This is the analogy
(or something else along the same line) that has to be emphasized
again and again, until they understand what the issue is about.

This isn't a marketing or consumer issue, it's a private property
issue.  Marketing legislation is the wrong way to deal with junk
e-mail, as it's limited to business operations.  What if I sue
someone who has been camping on my front lawn when I've been away
on vacation for a week, and the judge tells me to stuff it because
the campers haven't tried to _sell_ me anything???

Now, it would of course be unwise to offer commercial marketers
_more_ freedom to abuse our mailboxes than we give to occasional
non-profit leaflet distributors, so I'm all for a strict opt-in
regime in marketing legislation.  However, this is not the panacea
that will provide a definitive answer to the issue of unsolicited
e-mail as such, even though 99.99 percent of all junk e-mail is
indeed commercial in nature.  We need to stress the issue of our
private property rights with respect to electronic resources, and
help the politicians look away from what the junk e-mail itself
says.  The issue is consent, not content.  It may be tempting to
point to the most obnoxious cases of porn and drug advertisements
in order to give the word "spam" bad connotations, but I think it
would be counterproductive and only result in additional selective
legislation against porn and drug advertising.

>However, IANAL but I suspect that the CDPD cannot *allow* something that
>the main DPD prohibits, so whatever it ends up saying, it cannot
>over-rule [#] above. Therefore it is still possible to prosecute those
>fraudulent opt-in cases.

I will argue that the Data Protection Directive is an equally
inappropriate regime for combatting spam, as many mailboxes
belong to corporations rather than individuals.  I regularly
get spam to "daemon", "webmaster", and even "postmaster" from
time to time, and it's just as tiresome to deal with as spam to
my personal address.  If my university tried to bring such a
case to court, the spammer could safely argue that the address
"webmaster" involves no personal information pertaining to me,
and that he is therefore free to keep spamming us until hell
freezes over.  Our mail system is not built to last that long.

Now, if you look at the typical AOL user address, how are you
going to tell whether it pertains to a natural person or a
business entity?  If I start auto-dialing random phone numbers
without knowing where they lead, can I be charged with unlawful
processing of personal information, just because many of the
phone numbers belong to private individuals?  I'd say it's a
dangerous legal strategy; it may easily backfire on you, when
the judge finds that the spammer can't _tell_ whether an address
belongs to a natural person, much less _who_ it belongs to, and
that no "personal information" has therefore been processed!

In conclusion, I'm somewhat worried about bad laws being enacted
in the future, but I'm even more worried about a bad precedent
being set by us not even _trying_ to apply the laws that already
exist relating to private property.  How do we determine the best
wording of a _future_ law, if we don't know or agree even on what
_existing_ laws mean?

Past court cases showing the meaning of those laws would be worth
their weight in gold.  If a marketing lobbyist can beat a written
court ruling before your MEP, he can beat our speculations about
the implications of proposed laws even faster.

Can the anti-spam community muster enough financial resources to
hire professional lawyers, or is this something overworked ISP
staff and nospam-@localhost must do in their spare time?

It's not marketing or invasion of personal privacy; rather, it's
trespassing, pilfering, and organized theft of private and public
property alike.


Anders Andersson, Dept. of Computer Systems, Uppsala University
Paper Mail: Box 325, S-751 05 UPPSALA, Sweden
Phone: +46 18 4713170   EMail: andersa@localhost

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