Spam, Spyware, Spiders and Trespass
As mentioned previously in Spyware and Trespass, spam can, in principle, properly be considered a type of trespass--since it is a means by which the spammer uninvitedly uses another's property. As noted, a classic case is CompuServe v. Cyber Promotions, which held that transmitting a substantial volume of unsolicited e-mail to someone's computer, after demands to cease and desist, gives rise to a claim for trespass to personal property. And a court in Chicago recently a while back that the doctrine of trespass to chattels also "applies to the interference caused to home computers by spyware."
Just recently, as noted by Cyberlawyer Eric Sinrod, a Los Angeles court has ruled "that trespass was a viable legal theory to address the alleged distribution of spyware and adware programs."
The old common law doctrine of trespass to chattels relates to the interference with or taking of another’s personal property. The idea is that this doctrine is flexible enough to cover various types of ways that others access or interfere with others' computers, networks and servers, without consent.
In the case of spam--unsolicited email--sending a large amount of unsolicited email to someone's computer can bog it down, fill up the hard drive, etc., thereby causing a sufficient amount of interference or harm to make a trespass claim. In the case of spyware or adware, the argument is that a user downloads something like a free game or screensaver, which causes the installation of spyware and adware on the PC without the user's knowledge or consent, which then "substantially impair" the ability of the computer to function (i.e. reduced its efficiency), and destroy other software on the PC, etc.
As Sinrod noted, there are eBay in 2000 also was able to convice a judge that the unconsented-to use of "spiders" by Bidder's Edge (an Internet auction aggregation site) to "crawl eBay’s servers to obtain auction information ... placed some minimal burden on eBay’s servers," so that eBay "prevailed on its trespass to chattels theory."
Comments (20)
Boris Lvin
I disagree. Receiving emails (including spam) is a matter of a series of contracts: yours with your internet provider, your internet provider's with other internet providers, and of other internet providers with their users, some of which can be spammers. So everything can be stipulated by the appropriate contracts. You may commission your provider to deliver all mail, or to filter it with soe predetermined degree of security at your own risk of losing some legitimate letter. Providers may stipulate that users do not send bulk mail or something which can be defined as spam by some arbiter. Providers may decline to do things with other providers who do not prohibit spam, etc.
So if you do receive unwanted spam, it will be either your own fault, or the failure to adhere to the contract by your provider (who can press charges against some other counterpart).
But by no means there is a case of aggression or trespass.
Spam is substantially different from spyware and similar software issue which should be dealt with separately. Spam is something similar to familiar paper junkmail which also may, theoretically, clog your house.
Published: February 2, 2006 6:27 PM
Roy W. Wright
Spam and spyware, at least as described in this article, are by no means a form of trespass or theft. But I've argued this before and will try not to goad Kinsella any further.
Published: February 2, 2006 6:47 PM
Stephan Kinsella
Boris, let me ask you this. If you are visiting my house for a dinner party, and one of my guests shoots you in the foot without provocation--is this merely a breach of some contractual obligation, or is it an act of aggression against you?
Also, once you admit spyware might be trespass (as you seem to admit), you can no longer say spam categorically cannot be trespass. You need to say they are both trespass, or that neither are. They need to be treated similarly.
Roy, what's goading got to do with any substantive issues? Let's avoid the devolvement into tiresome meta-issues.
Published: February 2, 2006 7:13 PM
Roy W. Wright
I meant to say that I'll try to stay out of this since I basically made my reasoning known before, and the last heated discussion was more than enough for me. Unfortunately I seem to have goaded you by promising not to. :)
Published: February 2, 2006 7:23 PM
averros
With all due respect to Boris, I'll side with Stephan on the issue. I have built and run large Internet backbones and my understanding of the economics and technology of the Internet does not support the contractual view of e-mail delivery.
The contracts between ISPs (Internet Service Providers) and customers are for raw bit delivery, from end to end. The e-mail relay services are later add-ons, and are generally considered gratis services, not the core product. (There are other such services such as DNS, USENET relay, etc).
The end-to-end principle (i.e. "network is dumb and only knows how to deliver bits from end to end") is the cornerstone of the Internet architecture and is the main reason why the Internet outcompeted all rival technologies - because it neatly solves the "chicken and egg" problem of "smart" networks: when a new technology appears, a "smart" network operator has to decide to invest or not to invest into making his network aware and supportive of the technology. Too often the guess is totally wrong. The Internet is oblivious to the content of the bits carried and, being concerned only with the commodity service of delivering bits, the ISPs do not have to make any economic decisions (or even be aware) of any new network-based application - so a small community of users may start using it without any action or permission from ISPs and if the new technology is good, it'll grow up, and if not - it'll remain a niche player or will be forgotten. So experimentation fluorish on the Internet's soil while other networks (X.25, FR, telephony, telegraph and teletype, cable TV, satellite TV, etc) are stagnant and are or will be displaced by the Internet.
Technically, ISPs have no means to tell spam from not-spam - the definition of "spam" is entirely in the eye of the recipient. (If it were otherwise, spam wouldn't bring any revenues to the spammers -
because nobody would do anything in response to spam).
When a recipient creates a e-mail account (which, at some level, results in an SMTP server listening for incoming TCP connections), it effectively advertises that it will allow use of the server by other parties by processing and answering the incoming data packets addressed to specific TCP port.
The situation is exactly the same between someone entering my door or someone sending me a data packet - they both get some of my attention and some use of my resources. In the physical space there are ways to regulate the access by posting notices specifying the access policy. One can do the same in the Internet as well (by posting Acceptable Use Policies or by performing automatic filtering and rejection of unacceptable incoming requests).
The problem with the current technology is that the implied permission is wholesale - there's no way to permit use only to specific classes of users or messages. (I.e. there is no standard way to post a notice saying "No Solicitations", "One-Recipient Human-Typed Messages Only" or "Open to My Friends Only"). This makes spam legally murky, leaving spammers to argue about implied consent, community norms, and such.
Now, if the IETF would agree on some standard way of posting such notices, the illegality of spam would be made very clear - if I post "no solicitations" in a conspicious and unabmiguous manner, no judge will accept a claim that I'm somehow interested in receiving ads (or visiting salesmen).
The real problem is enforcement - the existing e-mail protocols and software simply cannot do any useful enforcement (which wouldn't subject the user to the risk of losing non-spam communications or impose serious inconvenience). This means that e-mail is a dying technology on its way to being replaced with something more useful. Such things happened on the Internet already (for example, how many people still read USENET?). What exactly would replace e-mail is not clear, but there's a lot of other problems with it, and the change is long overdue.
Published: February 2, 2006 10:08 PM
Peter
I'm with you until the last few sentences. Email isn't dying, AFAICS, and Usenet is not dead. A lot of people seem to use horrible web-based "forums" in preference to Usenet, but I assume they're just clueless - they're hardly "more useful" (I find them completely useless; unusable, in fact). I read Usenet every day.
Published: February 3, 2006 12:51 AM
Boris Lvin
To Stephan:
It depends on the contractual circumstances (usually implied). If your party is a kind of boxing contest, I cannot regard it as an act of aggression if I got hit.
As for emails - as I said, spam emails are of absolutely same nature as junkmail in your tin mailbox. Thus, spam letters cannot be compared to bullets or hits. On the other hand, spyware, viruses, etc are more similar to mail bombs in that they perform very real actions with your property without your consent.
To Averros:
Well, maybe the very fact that people expect the state to prohibit something undesirable prevents the more sophisticated contractual arrangements from being developed. Just like with security agencies so extensively discussed by libertarians, or with roads - as long as most roads are "free" and state-owned, private roads are likely to be a marginal element of the whole system.
Of course, I know the internet machinery as a user only, and my knowledge is nothing but very intuitive. Maybe I should have added to the list of contractual parties specialized email service providers - they already do rely on filtering, and my webmail providers demonstrate various degree of excellence in that (hotmail.com is worst, mail.ru is best). And you seem to have missed my point about eventual contractual exclusion of spam-senders by the community of providers - I see no objections to this idea.
As for notices - again, spam emails are not similar to visitors, they are similar to regular mail, and we have no notices preventing delivery of junkmail (although they can be easily introduced if the postal service is demonopolized).
Published: February 3, 2006 9:49 AM
Xellos
--"as I said, spam emails are of absolutely same nature as junkmail in your tin mailbox."
The comparison is not absolute. Junk mail is paid for by the sender. You are not given any extra expense to receive it, the bulk mailer pays for it on his end. They are subject to the usual economic constraints, in that they have to expect to make more than it costs for this kind of effort to be viable.
Spam is the other way around. The costs of sending are trivial compared to the cost of reception. Spammers spend very little of their own money (often none, since criminal means are often used, but that's tangental) to impose a much larger burden upon the rest of the internet.
Current estimates place spam at over 80% of all e-mail traffic. This is rather obviously signficant, imposing a much higher cost on anyone involved in receiving e-mail, from the extra server space and power needed to process and queue it all, the cost of network bandwidth to transmit it, the support staff hours needed to deal with it, and even the cost to the end-user (especially in areas that are still on a bill-by-the-minute connection).
Your analogy only holds if you assume all junk mail is being sent COD. I'm not sure that pure trespass is the best legal category for it, but trespass to chattel is a distinct category. I don't really think it's appropriate either, but there is a definite problem being caused by spam. Maybe we just flat out need a new legal category for this sort of thing.
Published: February 3, 2006 10:14 AM
Stephan Kinsella
Boris:
>It depends on the contractual circumstances (usually implied). If your party is a kind of boxing contest, I cannot regard it as an act of aggression if I got hit.
I think you are missing my point. Let's assume it's a normal party. It's not a version of Walter Block's "Murder Park". So, my question to you is: if my guest shoots you, is this an act of aggression, or is it merely a breach of the implicit contract with me and other guests, based on ground rules I, as owner, set?
My point in asking you this is to show that if you insist that spam can never be aggression/trespass, but only a permissible, contractual use or one impermissible by certain contractual rules, then you are basically relegating virtually *all* acts of aggression to mere contract-violations. For example, if A shoots B (without consent or provocation), we don't call it murder; we simply say that according to the rules set by the owner of the property A and B occupied, such shooting was not permitted; i.e., that the owner requires all guests to contractually agree that shooting is not permissible. So if A does shoot B, A is just violating the current set of contract rules. It's not murder--it's a breach of contract.
This leaves no room for real aggression, and it ignores the context, and the hierarchy of contract, property, and aggression.
In my view, "aggression" is just shorthand for the libertarian notion of ownership-assignment. What is unique about our view is that the proper owner of a scarce resource is the person who first homesteaded an unowned resource, or voluntarily acquired it from such a person. Everyone believes in "ownership"; all systems and views specify *who* has the right to control a given resource. Socialists think it's the state. Modern welfarists think it's whoever the democractic/statist process *says*. Etc.
In any event, aggression is a notion dependent on property. Aggression really simply refers to uninvited border crossings; to unconsented-to use of others' property; to invasion of property boundaries; in essence, to trespass. Of course, again, everyone really holds this view--the question is who is the owner. That is what makes libertarianism unique.
Contract is merely a transfer of title *to* property, or temporary use; so it fleshes out who the owner is, and it also defines when consent has been granted. But contract, like the concept of "aggression," is dependent on property rights.
Therefore, it seems to me it would be a mistake to say that all acts of aggression are just violations of contracts. I think this gets it backwards. A contract is just a type of transfer of title to property, or some limited version of this such as setting "rules of the road" for licensees-invitees who are guests or borrowers or property the ownership of which is maintained by the owner.
Moreover, I see no reason to assume that every act of aggression--an uninvited use of another's body, say--has to be seen only as a breach of some implicit background plasma or cloud of contract rules set by others. In a given area, sure, more and more aspects of interpersonal interaction could be governed by implicit or explicit agreements.
But if A and B are on some property with no explicit rules that make it a murder park or a boxing rink, A's shooting of B should simply be regarded for what it is: an unconsented use by A of B's body, which his aggression. *Why* is it unconsented to? Simply because B did not consent. True, if the owner of the forum had required A and B to agree to such battery before entering, there would have been consent; and therefore you can say the lack of the owner's doing this is why there is not consent; but that does not mean the aggression is merely a breach of contract.
In the context of spam, I believe there are a couple ways of looking at it. One, it is very clear that most customers don't want spam, and therefore, if there is any implicit rule set by the carrier and any intermediaries causally between the spammer and the spammee, we can assume that the customer's ISP etc. would also not welcome the use of their property for purposes of spamming their customer. What should the "default" be? Why presume that *unless* the various intermediaries make the spammer sign explicitly on the dotted line not to spam, that spamming is okay? If you invite guests to your house, are they free to kill each other *unless* you make them sign an-agreement-not-to-kill first? This is similar to the modern speech/action codes on campuses where a guy has to get a girl's written permission to try to kiss her first; otherwise it's presumed to be rape.
>As for emails - as I said, spam emails are of absolutely same nature as junkmail in your tin mailbox.
Right, and why do you assume junkmail is not trespass? If someone litters my lawn, it is trespass--a use of my property without my consent. If it could be shown that a given recipient does not want junk mail, in principle that could be trespass. For a while I had the Houston Chronicle dumping free newspapers on my lawn every a.m. I don't read it and hate the hassle of picking it up and disposing of it. In my view, their action--especially after I call them and tell them to stop--is trespass and should be prosecutable. I suspect your view, if extended, would say that the newspaper deliverer is committing trespass only if the road owner (my city, in this case) makes them sign an agreement not to dump papers on unwilling recipients' lawns; otherwise, in the absence of an agreement, they can dump whatever they want on my lawn. My protests should be with the road owner, not the one dumping stuff on my lawn. I think this is obviously absurd, and I trust you would too.
> Thus, spam letters cannot be compared to bullets or hits.
Sure they can. What they have in common is that they are all unconsented-to uses of other's property.
> On the other hand, spyware, viruses, etc are more similar to mail bombs in that they perform very real actions with your property without your consent.
If you argue the spam is not trespass since the spammer is not prohibited by contract w/ the ISP etc. then spyware is exactly the same.
Xellos:
>--"as I said, spam emails are of absolutely same nature as junkmail in your tin mailbox."
>The comparison is not absolute. Junk mail is paid for by the sender. You are not given any extra expense to receive it, the bulk mailer pays for it on his end.
I disagree. There is a cost to receiving junk mail. Costs of disposal, etc. It's litter. If there were a clear way to opt out or indicate your lack of consent, I would regard it as trespass, same as I would telemarketing phone calls made to my house.
>Your analogy only holds if you assume all junk mail is being sent COD. I'm not sure that pure trespass is the best legal category for it, but trespass to chattel is a distinct category. I don't really think it's appropriate either, but there is a definite problem being caused by spam. Maybe we just flat out need a new legal category for this sort of thing.
All forms of crime are really forms of trespass.
Published: February 3, 2006 10:54 AM
tz
The internet is in some sense a commons, so spammers might be like someone mildly obnoxious at a park - maybe you don't like jazz, but the busker will be playing it, and it is within the rules. You don't have to visit the park, even though it might be the only one nearby. You do not have to have a mailbox or a phone or an email account. If you do, are you plugging into a billion private parties, or one public one?
At some point the park might become so obnoxious that you will not go there. It it happens enough there will be a new park or more restrictions at the old one. There are many anti-spam technologies, and they seem to keep things just clean enough to make email usable.
Consider Sony's DRM. It installs a program when you insert the disk and won't even delete it if you click NO to the EULA. This is not some fly-by-night small operator. And the software creates security flaws and is difficult to remove.
But what about the "free" game which contains malware. Most have some extensive EULA that you won't read but click "yes" to. (I note that Microsoft's says I can return the software for a refund, but that is never honored by the author of the EULA, so are they valid and enforcable or not). If you click "yes" in order to play the game, can you really complain that it installed a spambot? Didn't you agree to that?
What about the flaws in Windows itself? You agreed to use a defective product, and to let microsoft add or remove defects at its whim if you legally purchased the program. Do you have any idea what you did or did not give your consent to? (Go read their EULA, and the GPL and you will see why I advocate free software).
Also note many maintain that software - speech, code, data, ideas - aren't really property. (Elsewhere I'm in a discussion on why Blackmail and by extension slander, libel, and even IP is right or wrong - Rothbard in his ethics says ideas and opinions aren't property - I differ as I explain at my blog). If the entire contents of your computer aren't property, then how is damaging, altering, or otherwise doing things with them a violation of rights? Are they in some ways like property, or exactly like property, or totally unlike property?
Take your pick, but I see too much discussion that assumes similar things to be property or not depending on what aim the author desires.
If my thoughts are a pattern of information, how is gossip different from malware?
Published: February 3, 2006 12:45 PM
David J. Heinrich
tz,
It is debateable to what extent EULAs would be enforcible (even in theory) in law. Also many elements of them are simply unenforcible due to practical purposes.
The EULA is not the signficantly limiting factor for most users; rather, the built in technological constraints (e.g., product activation) are.
The installation of software on a user's computer without their consent (or without notice of such in a contract) is a violation of private property rights, pure and simple (in the case of Sony that you refer to).
--Dave Heinrich
Published: February 3, 2006 1:08 PM
PR
Even before I learned about libertarianism, I always maintained that EULAs were unenforceable due to their being sprung on the buyer only after he has handed over his money. Courts have disagreed of course, but they get a lot of things wrong.
These are really two separate things. Information in the abstract sense cannot be considered property. But the physical manifestation of a given piece of information is different. It may be microscopic, but the arrangement of magnetic bits on spinning hard drive platters is part of the physical world. Altering this physical arrangement without your permission is simply vandalism. Certainly the defense "But you still have all your plaster and wood!" is not valid when someone knocks down your house.
Published: February 3, 2006 1:13 PM
averros
tz> The internet is in some sense a commons,
Well, that is a very common myth. Internet is, in fact, a pretty much anarcho-capitalistic system, where each part is owned by someone (and not by a "society" or a "collective") with few sore exceptions brought upon us by bad design (such as ICANN's claimed "ownership" of name allocation - brought by the hierarchical model of namespace instead of more useful network model).
Published: February 3, 2006 5:56 PM
averros
Stephan Kinsella> All forms of crime are really forms of trespass.
That's too overgeneralizing - there's also fraud. (Although I could see how the point that fraud is a trespass on a future property could be argued :)
Published: February 3, 2006 6:04 PM
Boris Lvin
Stephan, I see two sets of issues.
First, about the notion of aggression and your party analogy. Surely, if your guest intentionally shoots at your party, he commits an act of aggression AND violates some implicit contract with you. But if he shoots me accidentally, just while looking your shotgun which you presented him for inspection and admiration, we can see this unfortunate story in a different way. You may call both events "aggressions" but their nature is not the same, and while compensation AND punishment can be expected in the first case, it is only compensation that should be sought in the second case. Thus, much depends on the circumstances and evaluation of these circumstances.
Now, about email business. A argue that you have contact ONLY with your ISP (or webmail provider for that matter). We all assume that if you receive spam it might be due to your provider's inability to block it, or due to provider's accidental failure to block it despite it was technically possible and stipulated in your contract, but definitely NOT due to your provider's malicious plot to flood you with spam. So, there remains only MY analogy of the accidental discharge of the firearm.
Why I am so confident that purely contractual arrangement are sufficient to deal with the spam issue? Simply because I see it work. I have a number of webmail accounts, they are all free, they are all found on my webpages and the like, they are all included in the spammers databases, and still, amount of spam I get after the filters is negligible.
Actually, spam can be compared to many other kinds of advertisement - which by definition is directed to those who generally do not wish to see it but sometimes find it useful. Not just junkmail; take your daily newspaper (not thrown on your lawn despite your requests to stop this practice which I also call trespass, no, the one you are subscribed to) - its content is at least 50 percent ads, and it imposes costs on you in terms of carrying, keeping larger place for disposed newspapers, spending more time trying to find an interesting article, etc.
Published: February 4, 2006 11:24 PM
Stephan Kinsella
Boris:
>First, about the notion of aggression and your party analogy. Surely, if your guest intentionally shoots at your party, he commits an act of aggression AND violates some implicit contract with you.
Well, good. But notice: if I made every guest agree to enter my house and to hunt and shoot each other, then they would have consented and there would be no crime or contract breach. But the mere fact that I don't prohibit an action by contract does not meant the action is not aggression. So in other words, apparently, for you (and for me), it does not all devolve down to mere contract-breach. Good.
But of course, this implies your previous analysis of boiling spam down "only" a contract breach is wrong: because it relies upon the assumption that if it is not a contract breach, it is not aggression. Yet in the example above, you acknowledge that they are independent wrongs.
Your side-point about a case of negligence appears to me to be a distraction from the main issue of how to classify acts of intentional harm.
>Now, about email business. A argue that you have contact ONLY with your ISP (or webmail provider for that matter). We all assume that if you receive spam it might be due to your provider's inability to block it, or due to provider's accidental failure to block it despite it was technically possible and stipulated in your contract, but definitely NOT due to your provider's malicious plot to flood you with spam. So, there remains only MY analogy of the accidental discharge of the firearm.
I am not suing my ISP. My claim is not the complicated, but it does rely on a non-denuded concept of causation, one which is more common-sensical than many rationalists might accord. My view is that as a general matter one is responsible for actions one causes. Now, if A owns a computer, and it is clear he does not consent to B's use of it (say, to clog its drives with spam or to install a spyware app) then if B does manipulate or use A's computer, then it is aggression or trespass.
I am not too concerned with the particular means B uses to uninvitedly use A's computer. The criminal mind is devious and shrewd. I see no reason to rule out the use of intermediate owners' property as a means to a nefarious end--regardless of the fact that the intermediate owners "could have" set various contract rules. The point is to cut through the nonessentials and to identify when someone has used efficacious means to uninvitedly control or use others' scarce resources. The rest is mere details. Now, in the case of spam and spyware, my view is that this is a pretty clear case of a use by a spammer/spywarer of an unwilling victim's property--the means is the Internet connectivity system that is in place. Criminals always use extant systems and mechanisms to do their deeds. To me, this is a distracting detail.
Why I am so confident that purely contractual arrangement are sufficient to deal with the spam issue? Simply because I see it work. I have a number of webmail accounts, they are all free, they are all found on my webpages and the like, they are all included in the spammers databases, and still, amount of spam I get after the filters is negligible.
Actually, spam can be compared to many other kinds of advertisement - which by definition is directed to those who generally do not wish to see it but sometimes find it useful. Not just junkmail; take your daily newspaper (not thrown on your lawn despite your requests to stop this practice which I also call trespass, no, the one you are subscribed to) - its content is at least 50 percent ads, and it imposes costs on you in terms of carrying, keeping larger place for disposed newspapers, spending more time trying to find an interesting article, etc.
Published: February 5, 2006 12:07 AM
Stephan Kinsella
Averros: >>Stephan Kinsella> All forms of crime are really forms of trespass.
>That's too overgeneralizing - there's also fraud.
In my view, this criticism rests on the oft-repeated libertarian mantra that "fraud" is somehow to be piggybacked onto "real" aggression and "counted" as a type of crime. The problem, as I see it, is that most people are very imprecise or loosey-goosy when it comes to defining what fraud is and justifying classifying it as a type of aggression.
I have tried to elaborate on what I think is the right approach to this at note 69 and accompanying text here ; and p. 34 of this piece.
But the basic point is this: it is trespass to use someone's property without their consent. In a genuine case of fraud, the defrauder is granted the right to use or have property of the victim only under certain conditions, which the defrauder violates; meaning that the defrauder is giving property that in effect says "you can use/have this only if you are not defrauding me"; which means the defrauder gains possession of property he knows the owner does not consent to him using. This is trespass.
Published: February 5, 2006 12:20 AM
Boris Lvin
Stephan, I must admit that from purely technical point of view I find the format of this blog very user-unfriendly (no direct links between the comments, no email notification about replies, and so on), vastly inferior to what I find at livejournal.com which is now the major platform for serious Russian blogs. It would be great to discuss these issues in some other format.
Thus, I shall make just one simple observation. According to your rules, ANY letter sent without previous approval by the addressee IS spam and tresspass. If I find your website and write you an email requesting some clarifications or simply expressing my admiration of your views - it will be no different from a letter advertising nude celebrities. Both will come without you expecting or requesting them. In other words, there is no logical border between bona fide letters and spam letters. Such a border can be drawn between your trusted correspondents and all others, but all free webmail service easily provide you with an option to deliver mail only from the addresses in your address book. Everything else is judgemental and circumstantial.
Published: February 6, 2006 12:41 AM
averros
Stephan --
I would still be cautious about using the word "trespass" as a catch-all term for every crime. In the common usage trespass means unauthorized use of property. Generally, it does not include depriving the rightful owner of use of his property.
Rothbardian use of "to aggress" seems to be a better choice, and is consistent with scientific (ethological) use.
> According to your rules, ANY letter sent without
> previous approval by the addressee IS spam and
> tresspass.
There's always some layer of unwritten rules. For example, it is assumed that entance of a deliveryman carrying a parcel onto premises doesn't constitute trespass. Similarly, shops do not generally post "customers are allowed" signs. General public is expected to know these unwritten rules.
Given the global nature of the Internet, it is hard to argue applicability of any community norms; so the explicit acceptable use policy postings would be a norm - if SMTP, POP and IMAP had any provisions for policy declarations.
Even if such policies could be posted in such way that the sender is made aware of them prior to hitting "send", there is no practical way to enforce compliance. So the most reliable (meaning not relying on heuristic algorithms which err from time to time, and not dependent on opinions of other people) antispam measure works exactly in a way you described - by maintaining "whitelists" of allowed posters. In this system the e-mail address I give to someone contains a digital token permitting the specific sender to contact me.
Published: February 6, 2006 1:42 AM
Stephan Kinsella
Boris:
>Stephan, I must admit that from purely technical point of view I find the format of this blog very user-unfriendly (no direct links between the comments, no email notification about replies, and so on), vastly inferior to what I find at livejournal.com which is now the major platform for serious Russian blogs. It would be great to discuss these issues in some other format.
Agreed.
>Thus, I shall make just one simple observation. According to your rules, ANY letter sent without previous approval by the addressee IS spam and tresspass.
No; this is not right. I never implied this. I only implied that uninvited letters or spam *can* be trespass, IF it is uninvited; and that the caselaw mentioned covers pretty clear, egregious cases. However I have written before (see also here),
So if the vast majority of PC users welcome some occasional letters and emails for certain normal and accepted/innocuous purposes, then a presumption will arise that someone's silence means they acquiesce to the general scheme of things--that is, by failing to opt out they indicate to others their consent to receive an email or letter. My contention, however, is that you do have the right to opt out, and to indicate that you are withholding your consent, in some cases.
Published: February 6, 2006 4:06 PM