* Bill Stewart
Yup. Mr. Fuq is arguing at least two things: - If Bob sends a message to Alice that Alice thinks is Spam,
You're close.. If Bob sends a message that meets the (yet to be created) legal criteria for spam AND Alice thinks it is spam...
Alice has a right to sue Bob for spamming.
I'm not saying she has this right, I'm saying she *should*.
- If Bob sends a message to Alice the Bob thinks is legitimate, and Alice's ISP doesn't think so and discards it, this is a criminal denial of service activity.
Correct. However, the intent of denial of service laws is arguable and not concrete, so I would add a clause to the law which specifically includes denial of service on the part of the carrier to remove any doubt. This needs to happen because ISPs are not being held accountable for their denial of service actions.
Now, every spammer out there says that his or her mail is legitimate, so if Alice hires her ISP to detect and discard obvious spam for her, she's obviously hiring them to conduct a criminal act so she's Guilty Guilty Guilty!
The problem with this argument is that Alice unwittingly hires her ISP not knowing that her ISP will deny service. Because she is not fully informed, she cannot be held accountable. Example- You hire a professional moving crew to move a warehouse full of cocain, but you don't disclose to them the contents of the crates. It would be unreasonable to press charges against the moving company who didn't know what they were moving. Also, this argument you make is somewhat of a straw man, because I really wouldn't have a problem with an ISP discarding "obvious spam." The reason I would be okay with that is that when I email a friend with a personal message, the ISP would have a difficult time showing that such an email is "obvious spam." You have to take a step back and look at the EFF's philosophy, which I hold in high esteem. That is, spam blocking is okay if and only if legitimate mail is not denied.
Now, there are other people, such as the EFF, who will discuss the problems with ISPs that are too enthusiastic about dropping or rejecting mail, or (much worse from an internet engineering business) silently drop the mail without providing a proper reject message, which is a badly broken evil nasty thing to do.
First of all, my philosophy is completely aligned with that of the EFF. The only difference from your post would be the presence of a "proper reject message". The EFF does not agree with blocking legitimate email EVEN WITH A PROPER REJECT MESSAGE, nor do I. Now I would argue that without a proper reject message damages are substantially higher, and so the ISPs liability should also be higher, but reject message or not, blocking legit email is a problem.
Dropping mail noisily is not so bad - market solutions let customers tell their ISPs to be more or less aggressive, but people who send mail at least know it's been rejected.
Market solutions are failing in this case, and that is the very problem we're discussing. These ISPs don't empower the user with the spam blocking control. What's worse than that- they don't tell the user what they are doing, and the user is not fully informed of the consequences. Even worse, when my mother did become fully informed, she told Earthlink to stop blocking my email, and they refused. I can understand being attached to this 'free market' concept, it's American to be that way. But to embrace it as a perfect self-regulating model is giving it far too much credit. There are imperfections, some of which are gross imperfections, and there needs to be government influence in these areas.
Things like rejecting mail from Linux users who are rude enough to actually run Sendmail themselves instead of being dumb consumers also bug them.
You're confused about who's bugging who. It starts with the spammers. The spammers bug the ISPs, and their customers, who in turn bug their ISP. Then the ISP responds by implementing a poor spam blocking scheme because it's cheap and the best thing for profits. This bugs the civil libertarian Linux/sendmail users, because now their mail is bouncing. At this point, the linux/sendmail users are at the receiving end. The ISP is not bugged by this group because it's a small group and so their profit driven approach says that these users can be ignored. So the best way to fix this in a free market is to create a new right that gives users who are unreasonably denied service a right to claim $500 per denial (unreasonable in this case means blocking of obvious non-spam). Then it's still a free market, and ISPs are still free to block whatever they want, but it will get too expensive for them if they don't adopt smarter filters. However, that would be their choice, and it wouldn't matter to me which they choose, because even if they block my email, I would be compensated sufficiently enough to justify the loss.