As argued in my forthcoming Whittier Law Review article with Walter Block, The Duty to Defend Advertising Injuries Caused by Junk Faxes: An Analysis of Privacy, Spam, Detection and Blackmail, 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. (See also Spam, Spyware, Spiders and Trespass.) I just came across this 2004 article, Spam—Oy, What a Nuisance!, by law professor Adam Mossoff, which argues that spam “is indeed a nuisance, and that ISPs and other affected businesses should sue the persons responsible for swamping the Internet with billions of spam for creating a nuisance. Nuisance doctrine is superior to the currently favored “trespass to chattels” because it does not require courts to engage in unnecessary legal fictions or doctrinal somersaults in finding that spam has “dispossessed” a plaintiff from its computer network.”
Source link: http://archive.mises.org/5536/spam-as-a-nuisance/
Spam as a Nuisance
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Why is it that the people who are most against patents/copyright tend to also also be the most against spam and its ilk? You would think some proclivity for ‘freewheeling’ would carry over.
The problem is entirely technological and one should not be too quick to bring in the beating and killing state (even in a civil capacity).
Ham,
Patents/Copyrights (the binding-to-third-party kind) are shackles placed upon you, Spam is garbage dumped on your lawn. They are both violations of natural law, and therefore likely to be discussed in tandem.
I think both “intellectual property” and the “spam problem” are huge hoaxes, and their “solutions” both engender authoritarian regimes (USPTO and RBL/MAPS respectively).
I don’t buy into the argument of trespass for spam because services that users choose to offer on the Internet are provided without contract. They are “public” or open in a participatory consensus.
When your SMTP server accepts a connection from my SMTP server, you’ve granted permission for use; just as such permissions are automated with visiting a web server or joining an 802.11 wireless network. Outputting text of “terms of service” doesn’t qualify as an enforceable contract either.
SMTP is but one of many messaging protocols. There’s also Jabber/XMPP, OSCAR (used by AOL), IRC, etc.
Ironically, the same groups crying foul over spam — and in the process creating a two-tiered medium through blacklisting — are the same ones seeking FCC intervention for Net Neutrality in response to the threat of two-tiered bandwidth availability.
But spam is so not a problem it’s not even funny. It’s an Internet version of a “negative externality”. Naive Bayesian filters can detect and remove from view 99.9% of spam that arrives in your inbox. Effectively, you will rarely or never see it. I haven’t seen spam in 7 years. (I also tend to forget how frequently pop-up web advertisements occur when borrowing someone else’s computer with only IE available as a web browser.)
Zuzu, “…are huge hoaxes, and their “solutions” both engender authoritarian regimes”
That entirely depends upon the solution offered, doesn’t it?
For example, my ISP has a policy against its customers sending unsolicited commercial advertising. It also blocks all out-bound SMTP except to the ISP’s SMTP relay.
This not only prevents spam-bot Windows machines from resending spam, it also means that complaints can be verified and acted upon without inconveniencing anyone else.
There is also no reason why I, as a customer, cannot pay them extra and have them remove the block, or better yet arrange a different port with those to which I must send directly.
This is a solution, or at least a “best practice” which would eliminate a large quantity of spam without being recourse to a government at all.
And please don’t lump all tech-savvy people into the “net neutrality” boondoggle. It’s insulting.
“When your SMTP server accepts a connection from my SMTP server, you’ve granted permission for use.”
How about, “When some bank accepts my fake check on your account, you’ve granted permission for use.”
Or “When your car accepts my key, you’ve granted permission for use.”
Theft and trespass do not require active defense, nor violent incursion. They are none the less a violation. Bayesian filters are not the only form of defense, so are white-list-only email systems which many email service providers are enacting. And so is prosecution for trespass and nuisance.
Someone can claim ignorance for walking across your lawn without permission once. People who transmit millions of spam messages cannot claim ignorance. In fact, I consider the measures taken by spammers to obfuscate their sources, to utilize opt-out systems as sources of known good email addresses, to be clear evidence that they know very well what they’re doing is wrong, and they therefore deserved to be punished.
I hope they get a jury.
Neither of these two cases is a proper parallel for the original statement. For one, you don’t have any right to drive off with someone’s car unless you’ve previously secured the permission of the owner; the key exists as a form of property protection, but has no effect whatsoever on the legality of using the property. In the case of the bank it’s much fuzzier, depending on the exact arrangements you’ve made with the bank regarding the conditions under which the property will be released; the bank could be at fault for failing to verify the authenticity of the check properly, or they may have simply been following the procedures you agreed to on opening the account. Either way, the person presenting the check is committing fraud against the bank by knowingly presenting the fake check.
On the opposite end of the spectrum we have the original statement: “When your SMTP server accepts a connection from my SMTP server, you’ve granted permission for use.” I would say that there is a subtle error in the claim that permission should be necessary in the first place: rather, it should be implied by the very act of connecting the server to a public network, absent contractual obligations on the part of the service provider. If a person contracts with an ISP for a T1 line and Internet service, no guarantees are implied beyond adherence to the T1 standards and routing of packets between the T1 and the ISP’s other peers. Such guarantees can be made–the ISP could agree to filter packets, or require “good behavior” by its other clients as a condition for service–but are not implied by a typical present-day service agreement. In a pure private-property system such guarantees would no doubt be more common (if such protection is of sufficient importance to the network’s users to justify the cost), but then you have a clear chain of contractual obligations and there is no need to rely on such unsound extensions of property rights.
And please don’t lump all tech-savvy people into the “net neutrality” boondoggle. It’s insulting.
I didn’t. My point of comparison was that categorizing the Internet en masse, into those who may operate an SMTP server and those who may not, creates an instance of tiered Internet just as QoS performed by ISPs does. Yet, generally, it seems to me that the same advocates for the former are also detractors of the latter. Such people do not seem to reconcile their conflicting views.
As far as the problem of fraud and the communication of consent, I believe it’s reasonable to assert that what acts constitute fraud is not clear for all peoples everywhere. Measuring intent is precisely what Human Action seeks to avoid. (Nevermind making extreme interpretations of caveat emptor and subjective theory of value: “The bank apparently wanted that cheque or it would not have accepted it in trade.” etc.) Practically speaking, fraud deterrence seems constrained to currently available technologies and enforcement of contracts through arbitration service. This seems to me much as Jesse has already said.
Without prior contractual agreement between the two parties, or taking sufficient measures to defend your own property from the other party, they may otherwise infringe your rights in the space between ideal/absolute and real/enforcement. This follow much the same argument by Mises and Rothbard in regards to “negative externalities”. If you’re concerned with your neighbor dumping toxins into his soil which will then leech into your soil, you either need to contract with your neighbor or otherwise create a barrier to prevent that leeching. Otherwise you have tacitly accepted the trespass. As I read Jesse to also imply, with a pure private-property system, DROs would be common to arbitrate such conflicts.
If not for the “common carrier” monopoly/oligarchy status of communications companies today, in addition to the FCC dictating monopoly use of the light spectrum, I suspect we would have long since had such emergent facilitators.
“When your SMTP server accepts a connection from my SMTP server, you’ve granted permission for use.”
SMTP does not constitute a binding contract. It’s a protocol of convenience, created in the days when polite social convention was sufficient to protect private property. But those days are over, and any inch given will result in a mile being taken. That is why we have evolved other mechanisms.
Don’t like the “authoritarian regimes” of RBLS, tiered QoS, and port 25 blocks enforced at the router and unlocked only with good hard $$$? Tough. That’s the world you created.
“If you’re concerned with your neighbor dumping toxins into his soil which will then leech into your soil, you either need to contract with your neighbor or otherwise create a barrier to prevent that leeching. Otherwise you have tacitly accepted the trespass.”
And if you are in the habit of presuming tacit acceptance unless a gun is held to your head, don’t be surprised when you get to perform regular bore inspections.
I think the anti-spam hysteria was generated from the top as a pretext for the government to gain more control over the internet. I believe that for two reasons.
One reason: mass email campaigns could be a very low cost way that a common person can spread a message. The last thing the government and its protectorate industries need is for cheap mass communication.
Another reason: Albeit, spam can be frustrating, I find the hysteria over unsolicited email to be rather duplicitous, considering the fact that sending unsolicited junk snail mail is perfectly legal. The Postal Union wouldn’t allow outlawing junk snail mail, huh? It seems to me to be far more taxing to have to sort through your snail mail, then pile up the junk in the trash, and take the trash out to the dumpster than it is to click the delete button, or simply block spam.
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