On Tuesday, May 27, 2003, at 04:41 PM, Roy M.Silvernail wrote:
On Tuesday 27 May 2003 09:01 am, Tim May wrote:
On Tuesday, May 27, 2003, at 04:23 AM, Roy M.Silvernail wrote:
Frankly, I'm surprised I haven't yet seen incidents of spammers following up via another comm channel to find out why their spam was ignored and/or repeat their pitch. For that matter, with all the First Amendment blather heard from spammers, I'd almost expect one of them to argue for proactively enforced delivery and some sort of "obligation to read" statute.
No, absolutely _nothing_ in the First can possibly imply any "enforced delivery" or "obligation to read." I assume you are semi-joking, but this bears repeating, especially for those here who seem to be unclear on the concepts.
I understand the limitations of the First, but I wasn't exactly joking.
I guess I nailed it when I said "I assume you are semi-joking." Too bad, as there is certainly nothing which supports an "obligation to read" or "enforced delivery." More on this below.
And while I agree that the First cannot be said to imply such obligations, it seems to me that, on the surface, it would not preclude them, either.
??? The First quite clearly says that government can't be in the business of writing law about words, speech, etc. This then precludes any such laws by any branch of government. In other words, if the State of Georgia passes a law saying that recipients of letters or e-mails have an "obligation to read" them, this would rightly be struck down as a violation of the First. And if some radio station or printer were told he has an "enforced delivery" requirement, e.g., that he must print something or broadcast something, this would also be struck down. Ditto for e-mail. Granted, most ISPs will not pick and choose which e-mail to deliver, for various customer happiness and practicality reasons, and because they don't typically examine content. But there is no "obligation to carry" traffic. Nor should there be. In fact, some ISPs throttle traffic when too many e-mails have been sent or received. (By the way, speech laws about advertising, FCC rules, pornography look like counterexamples to the general point, allowing speech regulation, but they are not. One involves "commercial speech" (though I disagree completely). One involves allocation of the broadcast channels. And the pornography case has been contentious in First Amendment cases for well over a century. And to real First Amendment supporters, such laws are anathema. Of the three examples, only the FCC rules have any plausibility, having to do with scarcity of the broadcast spectrum...and there are some interesting free market/auction ideas there. With nonbroadcast channels, whether cable or fiber or DSL or whatever, there are no such scarcities: the owner of the channel charges for use of the channel. This is important to the spam problem.)
"Obligation to read" does not directly infringe upon the right to free speech. A deeper examination would probably show that it would infringe on the implied "right to be left alone" that is usually referred to as the "right" to privacy, but I don't think that would be enough to prevent such a law from being enacted.
A law requiring that words be read _is_ a law about speech. Whether the law requires or forbids the reading of words, it is a law about speech and thus an abridgement of the freedom of speech. Nonspeaking and nonreading are precisely isomorphic to speaking and reading. As a reminder: --AMENDMENT I Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Secondly, most if not all of the "anti-spam laws" are, in fact, directly in contravention of the First Amendment.
Does this include descendents of the junk-fax laws? (are there any of those, or haven't the lawgivers made the connection between fax paper and CPU cycles yet?)
Of course. Much as my personally dislike receiving faxes I did not expect to get, any law about "unwanted speech" is a law restricting the freedom of speech. If it becomes a criminal matter for someone to receive an unwanted telephone call, or e-mail, or fax, then the First Amendment is lost. (This space reserved for Choate to claim that I am saying people can stand outside my bedroom window at 3 a.m. sending me speech messages. No, I am not saying this. This is covered by other laws, and is a reasonable limit. But "unwanted communications" when no public disturbance is involved is not the same thing.)
The First does not allow government to be in the content examination business. Those who think otherwise need....well, you all know what they need. I am serious. I am fucking sick and tired of bureaucrats, legislators, and even people on lists like this thinking that they have some authorization to examine the letters or e-mails I receive.
How about simply holding companies absolutely responsible for the methods used to distribute their advertising? Couldn't Truth In Advertising be extended to email solicitation?
You are well and truly lost. Their should be no "truth in advertising" laws whatsoever. Advertising is just speech. Government is not, and cannot be, in the business of determining which speech is true and which is not. Will praying to the baby Jesus bring salvation? Will using Bowflex make you a babe magnet? Will eating Twinkies increase your sex drive? None of these are matters for government to decide.
The one thing that *all* UCE has in common is the attempt to sell something, and that requires an identifiable business presence.
Anathema to nearly every technology we advocate, notably remailers and proxies.
After all, people can't buy from a company if the company doesn't provide *some* method of contact to accept orders.
You are oblivious to the technologies we discuss here. I cite my own system, BlackNet, from 1993, as a counterexample to your claim. Practically, even physical items can be shipped when no identifiable legal nexus exists. A lot of porn companies work this way, with cutouts and shell companies to escape regulation, taxes, etc. This doesn't mean customers don't receive the DVDs they order, though, even if the legal nexus is unreachable. Again, a matter of continuing repuational capital, however imperfect. I know there are a lot of statists now on this list, but, really, at least try to relate your proposed statist laws to technologies we have discussed (and even implemented) here so many times. UCE laws _are_ speech laws. Period. The solutions are technological and economic. And, no, they don't necessarily involve some HashCash token. In fact, this flies against fundamental economic principles of markets, to establish arbitrary schemes and rates. The fundamental ontology is what needs fixing. If a Nigerian spammer can pay his 100 oogaboogas per month (equivalent to $6.50/month, or whatever) and then send ten million messages out, this is between him and his ISP and all upstream carriers, a la standard economies, a la the silk road, a la the Digital Silk Road. That his ISP offers him this free access, or that someone he connects to does, is no different from having a broken ontology where paying 100 oogaboogas a month entitles a Lagos-based shipper to fill as many cargo ships as he wishes with product. And the solution is NOT to regulate the cost of either cargo ships or ISP rates. This is not my problem, not my government's problem, and not the U.N.'s or WTO's problem. This is the ontology of that particular market and those players will solve it in time. See Greg Egan's "Permutation City" for a near-future scenario, as a bit of background to the main story, where spammers use sophisticated A.I. methods to try to get past the A.I.-based filters of customers. Egan is wise enough to realize that none of the ill-considered A.U.C.E. schemes are going to make any real difference, long-term. Filters and systems where people _voluntarily_ charge to look at incoming messages, will be the main approaches. I don't know precisely what the rates will shake out to be (in fact, they will vary widely) or how many other measures (filters, A.I.) will be used in conjunction with payment schemes, or how bandwidth providers will charge (and how much), but I sure do know that this free market approach is both more practical and more constitutional than the statist approaches are. --Tim May